New York County NyArchives Court.....Babcock, Samuel, Matter Of - Will Of Joel Wolfe 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

In the Matter of the Judicial Settlement of the Account of SAMUEL D. BABCOCK and 
JOEL BURKE WOLFE, as Sole Surviving Trustees Under the Last Will and Testament 
of JOEL WOLFE, Deceased.

Executors and trustees — when they are entitled to full commissions upon the 
corpus of the estate, in each capacity.

A testator by his will provided as follows: "I give, devise and bequeath all the 
rest, residue and remainder of the estate, real and personal, whereof I may die 
seized and possessed or entitled to, to my executors hereinafter mentioned, the 
survivors and survivor of them, their and his successors and assigns, to have 
and to hold the same as joint tenants, and not as tenants in common, upon the 
following uses and trusts: "To collect the rents and income and pay over $8,000 
thereof to his wife during her life, and the balance to others. He appointed two 
persons therein named "executors of this my last will and testament, and 
trustees under the same;" and similar phraseology was used in a codicil thereto. 
The executors were authorized to sell any of the personal estate, and invest the 
proceeds thereof in the purchase of improved real estate, in their names as 
trustees.

By a decree of the surrogate of New York of March 6, 1884, the executors, after 
making certain payments therein named, were directed to assign, transfer and set 
over to themselves, as trustees, the estate remaining in their hands, to be held 
by them, as trustees, under the terms of the will; which they did.

In proceedings thereafter taken for the settlement of the subsequent accounts 
relating to such estate, it was:

Held, that, by the provisions of the will, there was a separation of the 
functions and duties of the executors and those of the trustees, and that the 
duties of the executors clearly preceded those to be performed by them as 
trustees.

That they were entitled to full commissions on the corpus of the estate, both in 
their character as executors and also in their character as trustees under said 
will.

Appeal by the trustees from that part of the decree of the surrogate of the 
county of New York which adjudged that they, as such trustees, were not entitled 
to any commissions on the principal of the personal estate, in addition to the 
full commissions on the corpus thereof awarded to them as executors under a 
previous decree made by the surrogate on their final accounting as surviving 
executors of said will, and determining that only one commission on the corpus 
of the estate was allowable to each of them.

The testator by his will provided, among other things, as follows: 

Fifth. I give devise and bequeath all the rest, residue and

remainder of the estate, real and personal, whereof I may die seized and 
possessed or entitled to, to my executors hereinafter mentioned, the survivors 
and survivor of them, their and his successors and assigns; to have and to hold 
the same as joint tenants, and not as tenants in common, upon the following uses 
and trusts, nevertheless, that is to say: To have and to hold the same and the 
rents, issues, profits and income thereof, to collect and receive and, after 
paying thereout all proper and necessary costs, charges and expenses, to pay to 
my wife Margaret V. S. Wolfe, or to her use, annually during her natural life, 
or so long as she shall remain my widow, the sum of eight thousand dollars of 
said rents, issues, profits and income in four equal payments. * * *

Seventh. I hereby authorize and empower my executors to sell, whenever they may 
deem it advisable, any or all of my personal estate, and in their discretion to 
invest the same, or any part thereof, in bonds and mortgages on improved real 
estate in the city of New York, or in the purchase of improved real estate 
therein, in their names as trustees under this my last will and testament. * * *

Lastly. I hereby revoke, cancel and annul all other wills and codicils by me at 
any time heretofore made, and nominate, constitute and appoint my friends Edgar 
S. Van Winkle of the city, county and State of New York, and Samuel Denison 
Babcock, of Riverdale, Westchester county and State aforesaid, executors of this 
my last will and testament and trustees under the same.

By a codicil to his said will the testator further provided:

"I hereby appoint my nephew Joel Burke Wolfe, who now resides at No. 133 West 
14th street in the said city of New York, and who is a son of my late brother, 
Udolpho Wolfe, to be an additional executor of and trustee under my said will; 
and I declare that my said will shall be read and contsrued as if the names of 
the said Edgar S. Van Winkle, Samuel Denison Babcock and Joel Burke Wolfe were 
inserted therein throughout instead of the names of the said Edgar S. Van Winkle 
and Samuel Denison Babcock, and that all the trusts and powers in and by my said 
will reposed in and made exercisable by the said Edgar S. Van Winkle and Samuel 
Denison Babcock, or the survivor of them, shall be executed and exercisable by 
the said Edgar S. Van Winkle, Samuel Denison Babcock and Joel Burke Wolfe, or 
the survivors or survivor of them, their and his successors and assigns, and in 
all other respects I confirm my said will."

By a decree of the surrogate of New York of March 6, 1884, the executors, after 
making certain payments, were directed to assign, transfer and set over to 
themselves, as trustees, the estate remaining in their hands.

Henry Himmelmann, for the trustees, appellants.

Henry W. Clark, attorney for Alice G. Wolfe, respondent.

Macomber, J.:

It is apparent that the surrogate disallowed the claim of these surviving 
trustees on the ground that the testator did not, by his will, contemplate a 
severance of the functions of the executors from those of the trustees, 
technically so-called. The general rule is well established as enunciated in the 
case of Johnson v. Lawrence (95 N. Y., 154), that where the functions or duties 
of the executor and trustee are not separable, but are blended together, double 
commissions are not allowable. On the other hand, as is decided in the case of 
Laytin, v. Davidson (95 N. Y., 263), where the duties distinctively of an 
executor cease and those distinctively of a trustee are assumed, double 
commissions are allowable. This question is to be determined by an inspection of 
the will itself. By that instrument Joel Wolfe directs his executors to pay his 
just debts and funeral and testamentary charges and expenses, and authorized 
them to expend $5,000 upon his burial lot by way of ornamentation and 
improvement. By the second, third and fourth clauses, he gives certain legacies 
to his wife and two of his nieces.

By the fifth clause he gives, devises and bequeaths "all the rest, residue and 
remainder" of his estate, real and personal, to his executors, the survivor and 
survivors of them, their heirs, successors and assigns, to have and hold the 
same as joint tenants upon the following uses and trusts: To have and to hold 
the same, and the rents and issues, etc.; to collect and receive the same, and 
after paying thereout all proper and necessary commissions, charges and 
expenses, to pay to his wife during her life or widowhood an annuity of $8,000, 
of said rents, in equal quarterly payments. The rest and residue of said net 
rents and income were to be paid to maiden daughters of the testator's deceased 
brother in equal shares during the life of the testator's widow, with a 
provision that, in case of the death or marriage of any of the said daughters of 
the deceased brother her share of said income was to go to her unmarried sisters.

By the sixth clause the testator, upon the remarriage or death of his wife, 
gives, devises and bequeaths the rest, residue and remainder of his said real 
and personal estate to eight of his nieces, and a nephew, particularly 
specified, and provides that in case any of them die before that event, leaving 
issue, such issue shall take its parent's share; and in case no issue is left, 
the surviving brothers and sisters of the one so dying shall take his or her 
share.

By the seventh clause the testator authorizes and empowers his executors to 
sell, whenever they deem it advisable, any and all of his personal estate, and 
in their discretion to invest the same in bonds and mortgages on improved New 
York city real estate; or in the purchase of improved real estate, in their 
names as trustees, under the last will and testament, or to use the same, or any 
part thereof, in the improvement of any real estate he may die seized of.

It also authorizes them, in their discretion, to hold and retain his personal 
estate, or any part of it, in the manner and form as invested at testator's 
death. He also authorizes his said executors to rent, lease or improve any part 
of his estate, and declares, as his intent and purpose, that his personal estate 
shall be converted into real estate if it can be advantageously done. By another 
clause he authorizes his executors to let his real estate and to execute leases 
therefor. Lastly, he appoints Edgar S. Van Winkle and Samuel Dennison 
Babcock, "executors of this my last will and testament, and trustees under the 
same." By a codicil he recites the appointment of the last-named gentlemen 
as "executors of my said will and trustees under the same," and then appoints 
his nephew, Joel Burke Wolfe, "to be an additional executor of and trustee under 
my said will."

An inspection of this will shows that there was a separation of the functions 
and duties of the executors and those of the trustees, and that the duties as 
executors clearly preceded the functions to be performed by them as trustees 
before the latter began, and that there was no provision for the co-existence, 
continuously and from the beginning, of the two classes of functions and duties. 
A previous decree of the surrogate directed that the executors, after making 
certain payments named, assign, transfer and set over to themselves, as 
trustees, all and singular the estate so found to be remaining in their hands, 
to be had and holden by them as such trustees under the terms of said will and 
upon the trusts thereby created. In pursuance of this decree the executors did 
turn over and transfer to themselves, as such trustees, all such estate 
remaining in their hands, having finished their duties as executors, and 
assuming actively and exclusively the duties of such trustees.

Under these circumstances, we think that the trustees were entitled to the 
commissions claimed, and that, consequently, the order of the surrogate should 
be reversed, with costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concurred.

Order of surrogate reversed, with costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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