" A few months later Surrogate COLLINS in Matter of Moyse ( 188 Misc. 1030) involving a general power of appointment from husband donor to wife donee with the same trustees in both estates distinguished Culver ( supra) on the ground, inter alia, that receiving and not paying out commissions were involved — grounds which this court concludes were not justified by the record or the opinion. The Moyse decision distinguishing Culver was followed in Matter of Eginton ( 21 Misc.2d 179) a mother donor and son donee relationship with the trusts administered in different States by different trustees.
This case might seem on a first reading to support the contention of counsel for the trustee. However, an excellent critical examination of this case was made in Matter of Moyse ( 188 Misc. 1030). As pointed out by Mr. Surrogate COLLINS in the Moyse case, the Culver case involved a contract between the trustee and the testator. No such contract existed here.
The accounting trustees request payment of a minimum principal commission under subdivision 3 of section 285-a of the Surrogate's Court Act. The court holds that they are not entitled to a minimum principal commission since petitioners are not yet acting at a time of final distribution of principal ( Matter of Edwards, 183 Misc. 1014; Matter of Moyse, 188 Misc. 1030; Matter of Zinn, 188 Misc. 675). In the fifth paragraph of his will deceased created two separate trusts, one for the benefit of his brother and the other for his sister.
2. Is the accounting trustee entitled to commissions for paying over the assets in its hands to itself as trustee under the will of the donee? As to the first question, there is authority for requiring the trustee to qualify and obtain its letters of trusteeship in the donor's estate ( Matter of Bradford, 165 Misc. 736, affd. without opn. 254 App. Div. 828 [1st Dept.]; Matter of Moyse, 188 Misc. 1030, 1033; Matter of Walbridge, 178 Misc. 32; Matter of Eginton, 21 Misc.2d 179). However, the donee's obvious intent, as well as ample practical reasons, favors the trustee's qualifying and obtaining such letters in the donee's estate.
In Matter of Faroll ( 39 Misc.2d 309) the court indicated that it was concerned with one trust instrument which created three trusts out of a single fund, — not two settlors, two instruments of trust, two different trusts and two sets of trustees; in Matter of Stephens ( 49 Misc.2d 1003, 1007) involving powers of appointment, the court stated: "This court still believes that Matter of Culver ( supra) should be limited to the facts existing in that case"; in Matter of Molyneaux ( 44 Misc.2d 159, 165) involving powers of appointment, the court stated: "As pointed out by Mr. Surrogate COLLINS in the Moyse case, the Culver case involved a contract between the trustee and the testator. No such contract existed here"; the court in Matter of Moyse ( 188 Misc. 1030) distinguished Matter of Culver ( supra) on the basis that, in the latter case, a construction of a contract was involved. In Matter of Davis (N.Y.L.J., Nov. 30, 1965, p. 16, col. 7) Surrogate DI FALCO denied a paying commission to a trustee under facts similar to those in Culver.
Matter of Culver ( 294 N.Y. 321, supra) and Matter of Moulton ( 1 A.D.2d 771, supra) have been reviewed again. So also has Matter of Moyse ( 188 Misc. 1030). This court still believes that Matter of Culver ( supra) should be limited to the facts existing in that case.
Here, however, there are two settlors, two instruments of trust, two actually different trusts and two sets of trustees." ( Matter of Rosenzweig, 57 N.Y.S.2d 610; Matter of Moyse, 188 Misc. 1030.) In the case at bar we have a single trust instrument which created three trusts out of a single fund.
The objectant places its chief reliance upon the dictum of the Court of Appeals in Matter of Culver ( 294 N.Y. 321) as a basis for a direction that the donee's will be made effective by the transfer of the principal of the trust to California and its employment in that jurisdiction as a general asset of his estate subject to the claims of creditors. As was pointed out by Mr. Surrogate COLLINS in his decision in Matter of Moyse ( 188 Misc. 1030) the only issue decided by the Court of Appeals in the Culver case was the construction of a contract entered into between the testator and the trustee concerning compensation for the services rendered in execution of the initial life estate. It was there held that performance of the contract on the part of the fiduciary was completed on the death of the primary income beneficiary and that statutory commissions were allowable thereafter in connection with the further administration of the fund which was appointed in trust to the same trustee by the donee.
The court holds that one tenth of the principal of the trust vests indefeasibly in Corlies Clayburgh and that the remaining nine tenths vests indefeasibly in Allen Robinson Hall. The donees of the powers in trust named in the daughter's will must qualify in the estate of the testatrix and must administer the property in this estate in the manner specified in the appointment. (Matter of Moyse, 188 Misc. 1030 and cases cited therein.) The principal receiving commissions have been incorrectly computed.
The court holds that one tenth of the principal of the trust vests indefeasibly in Corlies Clayburgh and that the remaining nine tenths vests indefeasibly in Allen Robinson Hall. The donees of the powers in trust named in the daughter's will must qualify in the estate of the testatrix and must administer the property in this estate in the manner specified in the appointment. ( Matter of Moyse, 188 Misc. 1030 and cases cited therein.) The principal receiving commissions have been incorrectly computed.