Emerson v. Webster

Martin, J.

The questions "involved on this appeal are dependent for their solution upon the true construction of the testator’s will. If the purpose of the testator, as shown by the language employed in his will, was to blend the functions and duties of the executor and trustee, so that they were inseparable, and were to run together from the death of the testator until the appellant’s final discharge, the decree appealed from was proper, and should be affirmed. If, however, the provisions of the will show that the testator contemplated a severance of the functions and duties of the executor from those of the trustee, then it follows that the decree was wrong, and should be reversed. After making certain bequests to Asahel Read, the testator by his will devised and bequeathed to the appellant all the rest and residue of his estate, real and personal, in trust (1) to pay his debts and funeral expenses; (2) to pay the income from the estate to Mary A. Webster during her natural life; and (3) upon her decease to pay over to Mary R, Webster the whole of said estate if she should be 21 years of age; if not,, when she became of age, and to use the income for her benefit until that time. That the testator intended to appoint the appellant a. testamentary trustee to carry out the provisions of- his will, as well as to constitute him the sole executor thereof, is-manifest. The will conferred upon him the dual character of executor and trustee As executor, it was his duty to take possession of the estate, collect the debts due the testator, pay his debts and funeral expenses, pay the legacy given by the will, and sell the real estate, it he should deem it necessary. These were his executorial duties. As trustee, he was required to keep the residue of the funds belonging to the estate invested, and to pay over the income derived therefrom to Mary A. Webster until her death; and if she died before Mary R. Webster became 21 years of age, then to appropriate the income thereof to her use until that time. Upon the death of Mary A. Webster and the majority of Mary R. Webster th« trust would end, and the appellant would be required, as testamentary trustee, to account to Mary R. Webster for the estate in his hands.

We think the will shows that the functions of the executor and the duties of the trustee were separate. They were not to be executed concurrently and continuously to the end. The duties of the appellant as executor preceded his duties as trustee. The former were to be performed before the latter began. The trust as executor was ended when the appellant had taken possession of the estate, paid the legacies, debts, and funeral expenses, and rendered an account of his trust as such to the surrogate. He was then entitled to hold the estate as a trustee under the will. As such testamentary trustee, it was his duty to dispose of the income, and ultimately of the corpus, of the estate, as directed by the will, and to account to his cestuis que trustent as such testamentary trustee. We think the learned surrogate should have stated a final account with the appellant, made a décree discharging him as executor, and directing a transfer of the estate in his hands as executor into liis hands as trustee, and awarded him such commissions as he would have been entitled to upon such an accounting and decree. This conclusion is, we think, fully sustained by the following authorities; Lay *790v. Davidson, 95 N. Y. 263; In re Mason, 98 N. Y. 527, 534; Phoenix v. Livingston, 101 N. Y. 451, 5 N. E. Rep. 70; In re. Willets, 112 N. Y. 289, 19 N. E. Rep. 690; In re Crawford, 113 N. Y. 560, 21 N. E. Rep. 692; In re Wolfe's Estate, 5 N. Y. Supp. 634.

It follows that the decree of the surrogate should be reversed, witli costs payable out of the fund. Decree reversed, with costs to the appellant, payable out of the estate.

Hardin, P. J., concurred.