In re the Estate of Maurice , 74 A.D.2d 906 ( 1980 )

In a proceeding to settle a trust account, the appeal is from so much of a judgment of the Supreme Court, Westchester County, dated August 25, 1978, as (1) awarded the trustees commissions for certain periods and (2) directed that the trust assets be distributed per stirpes among all of the descendants of Charles S. Maurice. Judgment modified by deleting the third decretal paragraph thereof and substituting therefor a provision that the trustees’ commissions shall be recalculated upon final settlement of the account and thereafter paid. As so modified, judgment affirmed insofar as appealed from, with one bill of $50 costs and disbursements payable jointly to respondents appearing separately and filing separate briefs. The appellants argue that the court has improperly ordered payment of the trustees’ commissions before the computations are made for the final judicial settlement. The respondents agree that the commissions must be recalculated to reflect the changes in the capital value at the final judicial accounting and that therefore payment cannot be made prior to the final settlement. Thus we modify the judgment to incorporate this clarification. We agree with Justice Sirignano’s construction of the trust instrument. Damiani, Gulotta and Cohalan, JJ., concur.