In re Pike

The Surrogate.

On the argument there seems to have been some confusion, in the minds of the trustees, as to their respective rights, and also as to the mode of computing commissions on the body of the estate, and on the income thereof.

On the one side it was assumed that the two commissions not allowed to Mr. Olmstead were divisible between the other three executors; and that as to the commissions of the trustees, as such, Mr. Olmstead should be excluded because of his receipt of full commissions on his accounting as executor; while on the other hand it was contended that there could be no further allowance to the other executors for commissions as such, but the commissions must be equally divided between the four trustees as such, so far as the principal sum was concerned; but that as to the income, there was a discretion to allow such commissions as should be equitable, to the respective trustees.

*257As the other three executors took no part in the inventory of the estate, and rendered no account, and in fact received and paid out nothing as such excutors, there is no authority for, or justice in, allowing them commissions, on the accounting by the executor Dwight H. Olmstead, but as trustees they are entitled to commissions on the sum which came to their hands as such, and upon the income also.

By chapter 115, of the laws of 1866, sec. 1, it is provided that the trustees shall be allowed the same compensation for their services, by way' of commission, as are allowed by law to executors and administrators, and that if there be more than one trustee and the estate be insufficient to give full commissions to each, the Surrogate shall apportion such allowance among them, according to the services rendered respectively: but that Act refers to estates amounting to less than $100,000, so far as the apportionment is concerned.

By chapter 362, of the laws of 1863, section 8, it is provided that if the estate shall amount to not less than $100,000, over and above all debts, &c., and there shaE be more than one executor or administrator, each and every of such executors or administrators shall be entitled to, and allowed the full amount of compensation that he would have been entitled to if he had been sole executor, or administrator, provided such compensation should not exceed the amount payable to three executors, or administrators; and if there are more than three,, what would belong to three shall be divided among all in equal shares.

It will be seen that trustees, by the Act of 1866, are placed upon the same footing as executors and administrators, and by the Act of 1863 there is no authority to apportion the compensation to the respective executors and administrators, where there are more than *258three, according to the services rendered by them respectively, in cases where the amount of the estate is $100,000 or upwards, but the latter Act requires the compensation to be divided among them in equal shares.

Under these statutes, I hold that the four trustees in this matter are entitled in equal proportion to the amount of three commissions on the amount of the estate coming into their hands as trustees.

Decree accordingly.