New York Court of Appeals, 1913

Herzog v. . the Title Guarantee and Trust Company

New York Court of Appeals · Decided December 19, 1913 · <italic>Per Curiam</italic>.

103 N.E. 1120; 210 N.Y. 531; 1913 N.Y. LEXIS 770 (North Eastern Reporter)

Cases that cite this one

8 later published cases cite this decision.

City Bank Farmers Trust Co. v. Green (New York Supreme Court 1936)
In re the Accounting of Guaranty Trust Co. (Appellate Division of the Supreme Court of New York 1955)
In re the Accounting of National City Bank (New York Supreme Court 1947)
In re the Estate of Rolston (New York Surrogate's Court 1939)
First Nat. Bank of Opp v. Weaver (Ala. 1932)
Guaranty Trust Co. v. Halsted (N.Y. 1927)
In re the Judicial Settlement of the Account of Bankers Trust Co. (New York Surrogate's Court 1927)
In re the Judicial Settlement of the Account of The People's Trust Co. (Appellate Division of the Supreme Court of New York 1915)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*532 Per Curiam.

(1) In the action brought to construe the will of the decedent, McComb, which involved the construction also of the trust deed, it is said in the opinion of the court rendered at Special Term:

There is contained “in the will a clear designation of the persons to whom is to be paid the net income derived as well from the Central Park Apartment Buildings as from the remainder of the estate, and it becomes the duty of the trustee named in the trust deed to pay over the net income in equal shares to the testator’s children, who will thus receive it, not by virtue of the will, but by virtue of the trust deed in which the gift itself was contained, the will merely designating the beneficiaries.”

This is a proper interpretation of the will and deed and accordingly the net income should be paid directly to the beneficiaries and not to the trustees under the will to be by them distributed. The opinion is reported in McComb v. Title G. & T. Co. (36 Misc. Rep. 370, 375).

The Title Guarantee and Trust Company, the trustee under the deed, is also one of the trustees under the will. If that company should be allowed to pay to itself and the other executors under the will the income received under the deed, double commissions might follow. It is true the judgment of the Appellate Division in this case provides that the Title Guarantee and Trust Company shall not receive commissions as executor under the will on the sums received under the deed, but there are other executors, and there is no reason to believe that they will not demand commissions.

(2) The determination of the Appellate Division disallowing the claim that the defendant, the Title Guarantee and Trust Company, should be charged with interest is approved.

The judgment appealed from should, therefore, be reversed so far as it directs the defendant, the Title Guarantee and Trust Company, to pay over the net income to the executors and trustees under the will of the decedent, and the judgment of the Trial Term in that respect should be affirmed. As thus modified, the judg *533 ment appealed from should he affirmed, without costs to any party.

Cullen, Oh. J., Werner, Hiscock, Chase, Collin, Cuddeback and Hogan, JJ., concur.

Judgment accordingly.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.