In re the Accounting of Baker , 194 Misc. 789 ( 1948 )

Collins, S.

The trustees of a charitable trust request an award of principal commissions under paragraph (c) of subdivision 9 of section 285-a of the Surrogate’s Court Act. It is conceded that they are not entitled to principal commissions under the present act because the trust is “ not measured at any time directly or indirectly by a life or lives ” (subd. 5). They contend, however, that they were entitled to annual principal commissions under the former statute because they were .not trustees of a “ trust in perpetuity ” (L. 1943, ch. 694; Surrogate’s Ct. Act, § 285-a, subd. 4) for the reason that they had the right under the will to distribute any or all of the principal at any time to charitable corporations of the kind described in the will.

Subdivision 4 of the 1943 statute was construed by Mr. Surrogate Delehanty in Matter of Hoagland (194 Misc. 803). He said: “ The question is — What is a trust ‘ in perpetuity ’? In this material world nothing is perpetual or everlasting. As used in the Surrogate’s Court Act the phrase is a phrase of discrimination and is intended to define such trusts as are not subject to limitation upon lives in being under what we call our Statute of Perpetuities. Since this trust still continues without date for its termination fixed by any human life span the trustee’s commissions are limited to 5% on income.” The more precise definition used by the Surrogate in the cited case was adopted by the Legislature when the statute was revised (L. 1948, ch. 582). Such trusts are now referred to as trusts “ not measured at any time directly or indirectly by a life or lives ” (§ 285-a, subds. 5, 6) in place of the former locution trusts “ in perpetuity ”. The definition was expressed in different terms but the thing defined was precisely the same.

The court accordingly holds that the trustees were not entitled to retain annual principal commissions under the act as it heretofore existed and hence they are not entitled to any commissions from principal under paragraph (c) of subdivision 9 of the present act.

The trustees, however, are entitled to the commissions on income which are granted to the trustees of a trust not measured at any time directly or indirectly by a life or lives. Under the terms of subdivision 9 of section 285-a, such commissions are to be computed under subdivisions 5 and 6 of the present statute.

Submit decree on notice settling the account accordingly.