Opinion
June 12, 1925.
Appeal from Surrogate's Court of the County of New York.
Michael J. Horan, for the appellant.
Elliott Robeson [ Robert J. Robeson of counsel; Maxwell Hall Elliott with him on the brief], for the respondent.
The decree of the surrogate adjudged that out of the cash balance of income the trustee herein retain the sum of $1,342.20 for his costs and disbursements as taxed on the accounting. In this respect the decree follows the report of the referee, to which the appellant took due exception.
It has long been the law in this State that the trust fund itself shall bear the expenses of administration and that no part thereof can be taken from income. ( Woodruff v. N.Y., L.E. W.R.R. Co., 129 N.Y. 27; Chisolm v. Hamersley, 114 App. Div. 565.) In the case last cited, Mr. Justice HOUGHTON, writing for this court, said (at p. 569): "With regard to the expenses of the accounting, we think the court was right in charging them against the corpus of the estate instead of the income, or apportioning them between the two. It is a general rule that the trust fund must bear the expense of its administration. ( Woodruff v. N.Y., L.E. W.R.R. Co., 129 N.Y. 27.)" In the recent case of Matter of Eddy ( 207 App. Div. 162) this court unanimously held (p. 164) that the costs and expenses incident to an accounting "should be [charged] against the corpus of the estate entirely, and not apportioned ratably between the life tenant and remainderman, as was done by the surrogate. ( Chisolm v. Hamersley, 114 App. Div. 565; Robertson v. DeBrulatour, 188 N.Y. 301.)"
The beneficiary, I think, was entitled to the net income produced by the trust fund for her benefit untolled by the expenses of the accounting.
The decree appealed from should be modified by striking out the provision for the retention by the trustee of said sum of $1,342.20 for his costs and disbursements on this accounting, and as so modified affirmed, without costs.
CLARKE, P.J., and FINCH, J., concur; MARTIN and BURR, JJ., dissent.
Decree modified by striking out the provision for the retention by the trustee of the sum of $1,342.20 for his costs and disbursements on this accounting, and as so modified affirmed, without costs. Settle order on notice.