Cammann v. Cammann , 2 Dem. Sur. 211 ( 1883 )

The Surrogate.

By a decree of the Surrogate entered in the year 1874, the rest, residue and remainder of this decedent’s estate was, in accordance with the directions of his will, set apart to the executors as trustees, to apply the income thereof for the benefit of decedent’s widow during her life. The widow has since died, and the executors and trustees have presented the account of their transactions, preparatory to the distribution of the principal of the trust funds among the parties who have become entitled thereto.

A question has. arisen concerning the commissions claimed by the executors and trustees. Shall they be paid out of the ■ principal of the fund, or (as insisted by the special guardian of an infant entitled to share in such principal), are they chargeable on the interest' of the life beneficiary alone 1

■ The case at bar is clearly distinguishable from one in' which a life annuity is given by a will, and, with a single exception, I have found no reported case in which commissions have been directed to be paid out of the corpus of an estate, under circumstances like the' present.- ■ ■ •

The exception is Mount v. Mount (2 Redf., 406), cited by'the executors in support of their contention.

That decision, howeyer, does not seem to have been adhered to by the learned Surrogate who rendered it (see Stubbs v. Stubbs, 4 Redf., 171). On the other hand, the position of the special guardian is sustained by Pinckney v. Pinckney (1 Bradf., 269); Booth v. Ammerman (4 Bradf., 129)] Lansing v. Lansing (45 Barb., 182); Drake v. Price (5 N. Y., 430); Whitson v. Whitson (53 N. Y., 481). The decree herein should conform to the decisions just cited.