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22 N.Y.S. 1

Beard v. Beard

New York Supreme Court

Decided February 13, 1893

New York Supreme Court · decided 1893-02-13

<p>1. Testamentary Trustees—Commissions.</p> <p>Where testamentary trustees continue the warehouse business of a testator, the amounts paid out for expenses of the business, but subsequently repaid in the general aggregate receipts, constitute a reinvestment of the principal of the fund in their hands, on which they are not entitled to commissions for their services. In re Hayden, 27 N. B. Rep. 409, 125 K*. T. 776, followed.</p> <p>2. Same—Accounting—Interest.</p> <p>Code Civil Proc. § 2802, provides that any trustee created by will may file an intermediate account, and annually render, and finally judicially settle, his accounts before the surrogate, and in all such annual accountings of such trustee the surrogate shall allow to the trustee the same compensation for his services as is allowed to executors and administrators. Held, that where there has never been a complete distribution of income, and the trustees withdraw their commissions in advance of an allowance thereof by the court, they are chargeable with interest from the date of such withdrawal to the date of the decree finally settling their accounts. Wheelwright v. Rhoades, 28 Hun, 57, followed.</p>

Cited by 4 later decisions — most recently June 1959

4 state decisions

Relies on Hogan v. Smith

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1893-02-13

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DYICMAN, J.

¶1This is an appeal from certain portions of a judgment entered upon the report of a referee in an action for passing and allowing the accounts of the plaintiffs as executors and trustees under the last will and testament of William Beard, deceased. We think the case falls within the decision of In re Hayden, 7 N. Y. Supp. 313, 54 Hun, 197, where the judge who wrote the opinion for the court said:

“The buying and selling incident to the conduct of a manufacturing or other business, is, at best, a species of reinvestment of the trust funds. If commissions were to be allowed each time a stock in trade were purchased or sold, it is quite probable, as well as possible, for a case to arise where the executors' commissions would largely consume the body of the estate. ”

¶2The judgment of the general term in that case was affirmed, upon the opinion of the general term, by the court of appeals, 125 N. Y. 776, 27 N. E. Rep. 409. As w'e concur in the views expressed by the referee, and with the two opinions of the judge at special term, it seems unnecessary to elaborate those views.

¶3The judgment should be affirmed, with costs.

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