⚫ference between the two cases, nor can he be persuaded that any of the declarations of law contained in the opinion of the court in the case cited were obiter. They were all essential to the decision there made that the surrogate was justified in directing that the fund be paid into court unless an administrator were appointed within a time prescribed.

The surrogate's decree there appealed from was proper, if the executor of the deceased executor could not legally pay the residue to the legatee, who was conceded to be its absolute owner. His decree was useless, and therefore improper, if he could have directed the payment of the fund to the person who held the absolute title to it. Hence the opinion that the payment to the residuary legatee could not be made by the representative of the deceased executor was material to the result and became an authoritative statement of the law.

The representative of a deceased trustee, equally with the representative of a deceased executor, must find a successor in the original trust or office and account to him. No other payment will discharge him, and deposit in court will simply pass on the same vexation to the court, which in turn can only permit the fund to be placed in the hands of a successor to the primary trustee. It is better that a great inconvenience be imposed upon one estate than that a statutory rule wholesome in the main and inevitable in its operation be distorted or evaded. Decreed accordingly.

(77 Misc. Rep. 432.)

In re HEIST.

(Surrogate's Court, Kings County. July, 1912.)

TRUSTS (8274*)-TESTAMENTARY TRUSTS-EXPENSES OF TRUST.

Where a will directed the trustee to collect the rents and profits of the residuary estate, and after payment of expenses to pay the remainder to a sister of testator for life, and then to turn over the trust property to a niece, expenses of the trustee in defense of the corpus of the estate and in an endeavor to increase the same are not chargeable against the income.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 389-392, 493; Dec. Dig. 274.*]

In the matter of the judicial settlement of the accounts of Mary Heist, trustee of Philip Heist. Decree rendered.

David M. Neuberger, of New York City, for trustee.
Henry M. Dater, of New York City, for contestant.

KETCHAM, S. The residue is devised with the following pro

visions:

"And I direct that the said trustees collect the rent, interest, profits and income of the said property and after paying all necessary expenses, then to pay the net amount of interest, profits and income remaining as directed in the following paragraph.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

“Eighth. I direct that the trustees hereinafter named pay to my sister, Mary Heist, the net interest, profits and income referred to in the preceding paragraph during her natural life.

"Ninth. Upon the death of my said sister, Mary Heist, I then direct that the trustees hereinafter named turn over absolutely to Ella Denyse, the daughter of my nephew George Denyse, all of the said trust property mentioned in the preceding two paragraphs."

The accountant is the sole trustee. Expenses have been incurred by her in defense of the corpus of the trust and in an endeavor to increase the same. The claim that these expenses should be charged against the income of the trust is made upon the testator's provision that the trustees should, "after paying all necessary expenses," pay over the net income. It is argued that the words "all necessary expenses" contemplate every disbursement conceivably required in the discharge of the trust, and the contestant insists that the same meaning is to be derived from the provision that "all of the said trust property" shall be turned over to the remainderman.

It is not manifest that the testator intended by the words "all necessary expenses" any other expenses than those necessary to the collection and administration of the income. The stress which is laid upon the word "all" loses much force when it is seen that the habit of the will is to superfluously apply the word throughout the instrument. There is a gift to "all the heirs" of the decedent's brother. The gift in trust is "of all the residue." The trust is declared to be subject to "all the conditions" prescribed in the will. The word, when used to qualify the phrase "necessary expenses," should receive no emphasis in the particular instance greater than in the other cases where it has no conceivable meaning. If, however, it should be given the significance on which the contestant insists, it would be balanced by the word "necessary." The expenses referred to are those which are necessary to the collection of the income and its payment.

The phrase "all necessary expenses" is primarily, if not inevitably, limited to the processes intended and required by the specific provision in which it is found. It is as if the testator had directed that the trustees collect the income and pay the same after all the expenses "necessary" to the operation of collection and payment. It is not imaginable that the testator intended to burden the life tenant's income with the expenses ordinarily chargeable to the principal any more than that he intended that the income should pay the expenses which the executor as such incurred.

The words used lend themselves to an argument that expenses of probate were contemplated as readily as they could encourage the claim now made by the contestant. Commissions on the receipt and application of income are chargeable only upon the income. Costs of the accounting will be charged equally upon income and principal. Findings should be submitted in accordance with these views. Decreed accordingly.

137 N.Y.S.-49

(77 Misc. Rep. 288.)

In re ARCHER.

(Surrogate's Court, Rockland County. June, 1912.)

1. EXECUTORS AND ADMINISTRATORS (§ 93*)—MANAGEMENT OF ESTATE—AU

THORITY.

Where a will contains no provision authorizing the executors to continue the brick-manufacturing business of testator, the executor had no such authority, though the property was such that it could be used to better advantage in that way.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 8 407, 408; Dec. Dig. § 93.*]

2. COURTS ( 2004*)-SURROGATE'S COURT-EQUITABLE JURISDICTION.

A Surrogate's Court may apply equitable principles to subject-matters within its jurisdiction, though it does not possess general equitable jurisdiction.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 476, 477; Dec. Dig. 2004.*]

3. COURTS (8 2004*)-SURROGATE'S COURT-EQUITABLE JURISDICTION.

Where executors had the net proceeds of business conducted by them without authority under the will, for which it was their duty to account, and they invested them in real estate, the title to which was taken in the name of one of the executors, and held by him for the benefit of the estate, the Surrogate's Court has jurisdiction to determine whether, as between the beneficiaries or those claiming under them, the property remained such, as the duties of the executors in reference thereto were the same as if they had received it directly as a part of the estate.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 476, 477; Dec. Dig. 2004.*]

4. EXECUTORS AND ADMINISTRATORS (497*)-COMPENSATION-CONDUCT OF BUSINESS.

An executor, who continues the business of his testator without authority, or uses the property in a new business, and continues it, renders no service to the estate which entitles him to compensation, independent of his right to statutory commissions, in the absence of an agreement between the beneficiaries of the testator and the executor that he was to be paid for such services.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 2117-2124; Dec. Dig. § 497.*]

5. EXECUTORS AND ADMINISTRATORS (§ 497*)-COMPENSATION-CONDUCT OF BUSINESS.

The acceptance by the beneficiaries under a will from time to time of the net profits of the testator's business, carried on without authority by the executor, does not imply an agreement by them to pay the executors for the services rendered.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2117-2124; Dec. Dig. § 497.*]

6. EXECUTORS AND ADMINISTRATORS (§ 497*)-COMPENSATION-SUPERINTENDING REAL PROPERTY.

Services rendered by executors in renting, collecting rents of, and superintending real property, so far as they are given in accordance with the will, do not entitle the executors to extra compensation.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2117-2124; Dec. Dig. § 497.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Judicial settlement of the accounts of George Archer, as sole surviving executor and trustee under the will of Michael A. Archer. Decree entered.

Frederick W. Penny, of Haverstraw, for executor and trustee.

Harvey De Baun, of Congers, for Margaret Archer and special guardian for infant parties.

GAGAN, A. S. This is a proceeding upon an accounting by George Archer as sole surviving executor of and trustee under the last will and testament of Michael A. Archer, from January 11, 1889, to December 15, 1900.

The last will and testament of Michael A. Archer was probated in the Surrogate's Court of the county of Rockland on the 12th day of October, 1881. Letters testamentary were on that date granted to Charles D. Archer and Allison M. Archer, and letters testamentary were thereafter granted to George Archer upon his attaining full age; he having been a minor at the time the will was probated. George S. Sherwood, who was nominated in the will as executor, never qualified. On July 25, 1888, the letters testamentary granted to Allison M. Archer were revoked by a decree of the Surrogate's Court of said county of Rockland and he died on the 20th day of July, 1892. Charles D. Archer acted as executor, together with George Archer, until his death on the 17th day of October, 1909.

The will of Michael A. Archer, as far as it is pertinent to this proceeding, is as follows:

"I, Michael A. Archer, of the town of Haverstraw, Rockland county, do make, publish and declare this to be my last will and testament in manner and form following, that is to say, I give, devise and bequeath all my property, real and personal to my executors hereinafter named in trust to receive the rents, issues and profits thereof for and during the lifetime of my wife Clarissa A. Archer, and apply the same to the use of the following persons, as follows: Pay the one-third thereof to my said wife during her lifetime and the other two-thirds thereof to my three sons, Allison M. Archer, Charles D. Archer and George Archer, in equal proportions during the same time.

"Should my sons Charles and George and my said wife desire to continue to reside in my dwelling house where I now reside, then my will is that they may occupy my said dwelling house and the lot and barn used therewith and the furniture and property in the house and barn so long as they desire so to do without paying any rent therefor during the lifetime of my said wife, each paying one-third of the actual living expenses of the household. Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent during the lifetime of my said wife.

"At the death of my said wife, I order and direct my said executors to sell and dispose of my property as soon as they may deem it wise and expedient so to do, and divide the proceeds thereof equally between my said three sons, unless they elect then to hold the same; but if they elect and desire to hold the same together then the same shall be conveyed to them by the said executors instead of being sold.

"I authorize and empower my said executors to pay to my said wife a sum in gross, in lieu of the income from my said property at any time they desire so to do, or to invest one-third of the proceeds of any sale made by them of any of my property and pay the interest thereof to her during her lifetime. "I empower my executors to sell and convey my property, real and personal.

"Should my three sons and my wife desire my son Allison and his family to reside with them, where I now reside, then my will is that he may do so as long as they desire. The provisions herein made for my said wife are in lieu of her right of dower in my property."

The testator died seised and possessed in fee simple of certain real property situate in the town of Haverstraw, in the county of Rockland, a part of which was suitable for brick-making purposes, and upon which at the time of his death he conducted a brick-manufacturing business. After the testator's death his executors, as such, continued the brick-manufacturing business in which he had been engaged and used the real property of which he died seised for that purpose. During a number of years covered by this accounting this brick-manufacturing business was continued by Charles D. Archer and George Archer, as such executors, and said real property was devoted to that

use.

While the three executors were acting as such, they purchased several parcels of real estate, situated in the town of Haverstraw, and the title thereto was taken in the name of George Archer, individually, with the understanding that he was to hold the same for the benefit of the estate. The three executors, as such, began a brick-manufacturing business upon this newly acquired real property and used it for brick-making purposes, and, for a number of the years over which this accounting extends Charles D. Archer and George Archer, as such executors, were engaged in the brick-manufacturing business thereon, and the real property so acquired by them was utilized in said business.

In carrying on and conducting the brick-manufacturing business of the testator on the real property of which he died seised and also upon the real property subsequently acquired by them, they considered that they were acting as executors and for the benefit of the estate of Michael A. Archer, and in this accounting the sole surviving executor has in form accounted for all the net profits derived from these businesses during the period of this accounting. The accounts, however, have been contested, and objections have been filed thereto by parties claiming under Allison M. Archer, and the only questions of any importance which have not been eliminated by consent are the following: First. Had the executors authority under the will of the testator to either continue the brick-manufacturing business of the testator upon the real property of which he died seised, or, as executors, to engage in and conduct a new brick-manufacturing business upon the real property subsequently acquired by them, the title to which was taken in the name of George Archer, individually?

Second. As between the beneficiaries under the will of the testator, or those claiming under them, and the excutors, did the personal property, to which the estate or the beneficiaries under the will of the testator, or those claiming under them, were entitled, and which was invested in real property by the executors, retain its characteristics as personal property, and has the Surrogate's Court jurisdiction to determine that question?