Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196. 518): "It is contended that if the construction we have given this contract is to prevail, it will affect the responsibility of the defendant, if it does not result in its bankruptcy. If that be true, yet it affords no proper reason why we should disregard the plain and unqualified terms and provisions of the contract. Nor does it furnish any excuse for us to disregard well-established principles of law to hold it unenforceable."

A further and persuasive answer is that plaintiff's counsel, without objection, read from the report of the supreme medical examiner of the defendant, made to the convention of the supreme council of the defendant held at Buffalo, October 9th to 11th, 1900, as follows: "We have too many deaths among new members. Of the 1,394 deaths during this term 76 died before they were members one year, and 140 more before the end of their second year, making 207 or 14.84 per cent of all our deaths among those who were members less than two years. This cannot be entirely due to accident, and certainly should not be. Many of those men must have been afflicted with some form of organic disease at the time they were examined for admission, but which they managed to conceal in some way from the local examiner, who sometimes through lack of time or his desire to increase our membership or to see the family of a friend provided for, becomes careless in making his examination, but very careful in filling out his reports to see that all the questions are answered favorably to the applicant and would necessarily be approved by the supervising medical examiner."

Plaintiff's counsel also read from the report of the supreme recorder to the same convention, as follows: "Another word in regard to the deaths of this term: Reference to the report will show that of the deaths of the past three years, 37 occurred within six months of initiation, costing $68,000; 97 occurred within one year of initiation, costing $167,000; 209 occurred within two years of initiation, costing $365,000; 283 occurred within three years of initiation, costing $485,000. Here it will be seen we have paid nearly half a million dollars

for members whose average duration of membership will not exceed twenty-two months."

This very severe arraignment of the business methods of the defendant, coming as it does from its officials in high position, goes far to establish the fact that the peril of coming insolvency is due to a failure to observe the fundamental principles of life insurance.

The judgment and order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs to the plaintiff in both courts.

CULLEN, Ch. J., HAIGHT, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur; GRAY, J., concurs in result. Judgment and order reversed, etc.

In the Matter of the Accounting of KATHARINE T. MARTIN et al., as Executors of MARY J. MARTIN, Deceased, Appellants.

CAROLINE M. ROBINSON et al., Respondents.

Decedent's estate - when executors, also acting as trustees, are only entitled to one full commission upon moneys collected and paid out — waiver by beneficiaries.

Where as to the corpus of an estate the executorial and trust duties devolved upon the same persons are so blended as to render them practically incapable of separation, such persons are only entitled to one full commission upon the sums collected and paid out by them. Where, however, beneficiaries have consented in writing to an informal accounting and acquiesced in a decree which granted to each of the executors and trustees full commissions in each capacity, they are bound thereby.

Where trustees receive income and make annual payments thereof to the parties entitled thereto, but do not render an account of such collections and payments to the Surrogate's Court, they are entitled to have their commissions upon the income paid out by them computed on the basis of annual rests.

Matter of Martin, 133 App. Div. 893, modified.

(Argued November 10, 1909; decided November 23, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1909, which affirmed a decree of the New York County Surrogate's Court settling the accounts of the executors herein.

The facts, so far as material, are stated in the opinion.

Henry H. Man and Hubert E. Rogers for appellants. It was error to refuse the appellants as trustees commissions upon capital in addition to those awarded to them as executors. (Olcott v. Baldwin, 190 N. Y. 99; Hurlburt v. Durant, 88 N. Y. 121; Matter of Mason, 98 N. Y. 527; Matter of Babcock, 52 Hun, 510; Matter of Beard, 77 Hun, 111; Laytin v. Davidson, 95 N. Y. 263; Johnson v. Lawrence, 95 N. Y. 154; Matter of Curtiss, 9 App. Div. 285; Matter of Willets, 112 N. Y. 289; McAlpine v. Potter, 126 N. Y. 285; Matter of Johnson, 57 App. Div. 494; Matter of Union Trust Co., 70 App. Div. 5; Jewett v. Schmidt, 83 App. Div. 276.) It was error to surcharge the account of the appellants with the commissions upon income retained by them annually. (Hancox v. Meeker, 95 N. Y. 528; Matter of Mason, 98 N. Y. 527; Spencer v. Spencer, 38 App. Div. 403; Olcott v. Baldwin, 190 N. Y. 99; Naylor v. Gale, 73 Hun, 53; Matter of Hunt, 41 Misc. Rep. 72; Savage v. Sherman, 87 N. Y. 283.) It was error to modify the decree in favor of parties who had not appealed. (St. John v. Andrews Inst., 192 N. Y. 382; Rowland v. Morgan, 3 Dem. 289.)

Charles De Hart Brower and Seth B. Robinson for Caroline M. Robinson, respondent. The surcharging of the account with the whole amount of the commissions wrongfully taken by the executors and sought by them to be allowed in their account as an item of credit was correct. (Belden v. Andrews, 14 App. Div. 630; Altman v. Hofeller, 152 N. Y. 498; Matter of Chapman, 162 N. Y. 456.) The Appellate Division in their decision were correct in holding that the will

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

herein does not contemplate the severance of the trust and executorial duties as to the residuary estate. (Matter of Union Trust Co., 70 App. Div. 5; McAlpine v. Potter, 126 N. Y. 285; Matter of Slocum, 169 N. Y. 153.) In order to entitle one to double commissions as executor and as trustee it must be shown that the will contemplated a period of time when the duties of the executor as such should end and he should assume the character exclusively of trustee and also that the duties of the executor have actually ceased and the duties of trustee been assumed. (Laytin v. Davidson, 95 N. Y. 263; Johnson v. Lawrence, 95 N. Y. 154; Matter of Slocum, 169 N. Y. 153; Matter of Iunt, 121 App. Div. 96; Matter of Reed, 45 App. Div. 196; McAlpine v. Potter, 126 N. Y. 285.)

Robert F. Greacen for Katharine T. Martin, as administratrix of John C. Martin, deceased.

WERNER, J. The questions raised by this appeal relate wholly to the claim of the appellants to double commissions as executors and trustees under the will of Mary J. Martin, deceased. The appellants were named in said will as "executors and trustees" and they each claim to be entitled to one full commission in both capacities. Without going into the details of the various provisions of the will upon which they rely to support their contention, we deem it sufficient to say that we think this will falls within the general classification exemplified in McAlpine v. Potter (126 N. Y. 285) and not within the opposing class represented by Olcott v. Baldwin (190 N. Y. 99). As to the corpus of the estate the executorial and trust duties of the appellants were so blended as to render them practically incapable of separation, and this is fairly evidenced by the acts of the appellants in administering the estate. Under this general statement as to cur construction of the will, the decision of the Appellate Division as to commissions would be entirely correct, if it were not for special circumstances which take the case out of the ordinary rule. The recital of a few facts will indicate the

Opinion of the Court, per WERNER, J.

[Vol. 196.

points upon which our views are at variance with those expressed by the learned Appellate Division.

The testatrix died in July, 1896, leaving six daughters and one son, who were the only beneficiaries under her will. The appellants entered upon the performance of their duties as executors and trustees and continued until 1901, when they were prepared to make and file an account down to December 31st, 1900. For several reasons they had been requested, by some of the parties in interest, not to file a formal account in the Surrogate's Court. For the purpose of ascertaining the wishes of all the beneficiaries, the appellants mailed to each of them a letter expressing a willingness to refrain from filing an account in the Surrogate's Court, if by the consent of all concerned the appellants could be assured of legal protection and of the right to their legal commissions. To this end the appellants submitted to the beneficiaries a proposed decree, to the entry of which they all consented in writing, except the respondent Robinson and Katharine T. Martin; the signature of the latter being unnecessary, as she was one of the accounting parties. The respondent Robinson acquiesced in the plan for the informal accounting and approved the account, but declined to sign the consent for the entry of the decree upon the sole ground that she objected to the amount of the commissions claimed by the executors and trustees, and desired to have that question held open for disposition by the surrogate when a final accounting should be made. Thus the situation remained until 1907, when the surrogate made the original decree herein. That decree provided for one full commission to each of the appellants herein on the amount which they received and paid out as executors, and another full commission on the amount which they received and paid out as trustees. Their account was also credited with the sums which each had retained as commissions on the income which, from time to time, had been paid to the several beneficiaries. From the decision thus made by the surrogate the respondent Robinson appealed to the Appellate Division, where the decree of the surrogate was modified upon the