The trustees of a certain fund, the income of which was given by decedent’s will to a beneficiary for life, have filed their account, and a decree settling the same is about to be entered.
Upon this settlement, the following questions are presented for determination:
1st. Are the accounting parties, who have already, in their capacity as executors, received commissions from this fund, entitled upon the present accounting to be awarded commissions as trustees %
2nd. If so entitled, should each of them be allowed
3rd. If such commissions cannot be aEowed, then at what rate per cent, should commissions be granted upon the income' about to be distributed ?
First.—I hold that the parties accounting are now entitled to commissions upon the principal of the trust fund, as well as upon the income. The testator’s wEl made express provision for the setting apart of the fund in question, and directed that, after its separation from the body of the estate, it should be held in trust by the executors, as trustees for the beneficiary. The accounts previously filed herein, and the decree settling the same, show that the separation directed by the wEl was in fact effected, and that, after such separation, the executors continued to hold and manage the fund as trustees.
Second.—The amount of the principal of this fund is less than $100,000, but it is claimed that, as the principal and income, taken together, are in excess of that sum, each trustee is entitled, under §§ 2811 and 2736 of the Code of CivE Procedure to one half commissions for receiving the principal, and to full commissions for receiving and "disbursing the income. This claim does not seem to me weE founded (see Savage v. Sherman, 24 Hun, 314). The decision in Matter of Leggatt (4 Redf., 149) seems to support the view here contended for by the trustees, but that decision was made with reference to a state of facts very different from the present. The rents of certain real
Third.—The rate at which the commissions should be computed is the same as that which is applicable to executors in like cases, and this as regards both income and principal. Whatever may have been the rule on this subject when chapter 115 of the Laws of 1866 was in force, that act having been repealed by.the general repealing act of May 10th, 1880, the trustees now stand, with reference to commissions, upon the same footing as executors. Cram v. Cram (2 Redf., 844), and Ward v. Ford (4 Redf., 34) are cases which seem to counte