Buermann et al. agt. The New York Produce Exchange et al. agt. Bennett (56 Barb., 197), saying: "The only question here-tofore has been, whether the general guardian could maintain an action to recover debts due the infants, and although that question has been set at rest, the converse one respecting the right of the infant by guardian ad litem to maintain such an action has not, to my knowledge, been authoritively denied. The infant having a right to sue on the ground of his general property, it must be done by a guardian ad litem (Code of Civ. Pro., secs. 468, 469), who may, in some cases, be appointed on the application of the general or testamentary guardian. Section 476 also recognizes an appointment of the general guardian as guardian ad litem (Shoul Dom. Rel., 592, et seq., and authorities cited)." The same case is reported in 22 Hun, 6, where the general term reiterates the action was properly brought in the name of the infant by guardian ad litem. It is also reported on appeal in 94 N. Y., 473. The suit being brought by the guardian ad litem, the point was taken it ought to have been brought by the general guardian, the contract being in writing, made by the general guardian with the defendant (see 478) on page 77. Thomas agt. Bennett (56 Barb., 197) is contrasted with Bradley agt. Amidon (10 Paige, 235, 239) in favor of the latter. The court unanimously say, the property is in the infant and possession in the general guardian, and that a suit brought in the name of the infant by guardian ad litem is not improper. IV. See, also, Abbott's Forms, vol. 1, page 51, head-note to chapter 5 and page 52; also, Abbott's Digest, vol. 7, title “guardian ad litem," head-note thereto, and head-note to title, "guardian and ward," in same volume, Hahn agt. Van Dovern (1 E. D. Smith, 411), Wood agt. Wood (8 Wend., 358). V. 2 Revised Statutes, 150, part 2, chapter 8, title 3 (3 R. S [6th ed., Banks], 167), was not repealed when the Civil Code of Procedure went into effect. Laws 1880, chapter 245, repeals all of title 3, except sections 1, 2, 3, 20 and 21. It repealed section 10, heretofore referred to. Section 3 is there still law. 2 Revised Statutes, 446, sections 1 to 3 (3 Banks [6th ed.], 731), being part 3, chapter 8, title 2, sections 1, 2, 3, have all been repealed by Laws 1880, chapter 245, and sections 468, 469, 472, 475 and 477 of the Code of Civil Procedure took their Buermann et al. agt. The New York Produce Exchange et al. place, which make it quite plain where an infant has a right "he" is entitled to maintain an action thereon, and a guardian for the infant plaintiff must be appointed. Section 470 of the Code of Civil Procedure, taking the place of section 116 of subdivision 1 of the Old Code, shows that if the infant has a general guardian still a guardian ad litem must be appointed on his application. VI. The case of McDonald agt. Brass Goods Manuf. Co. (2 Abb. N. C., 434), cited in the Matter of Mang (50 Super. Ct., 96), shows the strictness and jealous regard of the court for the appointment of a proper person to conduct a suit for an infant as guardian ad litem. Otto Meyer and Frederick A. Card, argued: I. That by the by-laws of the New York Produce Exchange, in the case of infants, the money was payable to their general guardian and, therefore, should sue it. II. He has the care and custody of the personal property of the infant, and must gather and collect it in; he is to receive it, and having a right to the care, custody, possession and control of the moneys he has the right to sue for it. III. That Thomas agt. Bennett (56 Barb., 197), had never been questioned, or reversed, and that Segelken agt. Meyer (14 Hun, 593), did not decide that a general guardian could not bring such action. It only held that a guardian ad litem could also do so. O'GORMAN, J.—This action is brought by the general guardians of infants, to assert their claim against the New York Produce Exchange for $5,000, which became due and payable by that association to the widow and next of kin of August Buermann, deceased, and against Eva Buermann, the widow, whodemurs on the ground, among others, that the general guardians had no right or power to sue in their own names to recover this property belonging to the infants, and that suit could only be properly brought by a guardian ad litem. The question raised by this demurrer has not been altogether free from doubt In Segelken agt. Meyer (94 N. Y., 47), the court say, that it does not appear to have ever been decided by that court. It Phoenix agt. Livingston. held, however, that that action was well brought in the name of the guardian ad litem. The Code of Civil Procedure, which in sections 469, 470 and 476, requires that before a summons is issued in the name of an infant plaintiff, a competent person must be appointed to act as his guardian ad litem, and provides, also, that the general guardian may be appointed as guardian ad litem, sufficiently expresses the intent of the law as it now is, viz.: That by the intervention of that officer alone, an action on behalf of an infant can be brought, at least, in cases where the assertion of the infant's claim to recover personal property is concerned. The case of Cagger agt. Lansing (64 N. Y., 418), was decided before the adoption of the Code of Civil Procedure now in force. It was an action brought by the general guardian of infants to recover real estate, and it was held that their rights in such an action were enforcible by their mother as guardian in socage (Id., 426). The case at bar is concerned with the assertion of the claim of the infants, not to real estate, as to which alone a guardian in socage could have represented them in an action, but only to personalty, and the case last cited throws, therefore, no light on the present inquiry. In my opinion the necessity of clear and uniform practice under the provisions of the Code of Civil Procedure above referred to, requires that the rule should be recognized, that in cases such as that at bar, the actions should always be brought in the name of a guardian ad litem, properly appointed, and that if brought in the name of the general guardian they are not well brought. For these reasons this demurrer is sustained, with costs. COURT OF APPEALS. PHILIPS PHOENIX, &c., respondent, agt. MARIA W. LIVINGSTON. Executors and administrators-Commissions, when trustees-How computed. Where executors are also trustees, they are entitled to commissions in both capacities, where the will contemplates a severance of duties, and a point Phoenix agt. Livingston. of time at which those of the executor would be ended and those of the trustees begin, but where a portion of the trust estates consists of real property, the commissions should not be computed upon the value of the real estate subject to the trust, but only upon sums of money, or other equivalent, received and paid out. (Wagstaff agt. Lowerre, 23 Barb., 209, overruled.) Decided March, 1886. J. E. Kernochan, for appellant. William B. Ross, for respondents. FINCH, J.—There are but two questions in this case, and both may be considered without reviewing the complicated details of the trust accounts. These questions are whether the executors, who were also trustees, became entitled to commissions in both capacities, and if so, whether the trustees' commissions are to be computed upon the value of the real estate. The first of these questions must be answered by subjecting the facts established to the test of the rules adjudged in Johnson agt. Lawrence (95 N. Y., 154) and Laytin agt. Davidson (95 N. Y., 263). In the first of these cases double commissions were refused for the reason that the will contemplated no separation of duties on the part of the executors, and no transfer to or holding by them of any portion of the estate in the character of trustees; while in the second, double commissions were allowed upon the ground that the will did contemplate a severance of duties, and a point of time at which those of the executors would be ended and those of the trustees begin. In that case the severance of the trust funds from the general assets contemplated by the will had taken place; so much of the estate as was needed for debts, legacies and expenses had been to those purposes appropriated, and the balance, having been ascertained by a settlement of the executors' accounts, became and was adjudged to constitute a trust fund to be further held VOL. IIL 51 Phoenix agt. Livingston. and managed as such. Within the doctrine of these cases, commissions in both capacities were properly allowed in this. The will contemplated a severance of duties and a point of time when that severance should take place. At the beginning of the instrument, after directing the payment of debts and expenses, the testator names six persons "executors of and trustees under this my last will and testament." They were first to act as executors of the will and then as trustees under it. A series of separate trust estates are then constituted, running for the lives of specified beneficiaries. Some of them required specific sums to be set apart, and others and more important ones provided in very careful detail for a severance of purely trust estates from the general assets and their further management and administration, not by the executors, but by five out of the six of them holding as trustees. Since a serious portion of the trust estates consisted of real property, provision was made for a suitable partition for the purposes of the trusts, and a broad and abundant authority given for the management of the lands. The trustees were empowered to lease the improved property for a period not exceeding five years, and that which was unimproved for not more than twenty-one years. Authority was conferred to sell the lands in other states, the unimproved property in this state, and the dwelling house with the consent of the widow, and the trustees were authorized to rebuild structures destroyed or impaired and erect new buildings upon unimproved property so as to render it productive. A further provision of the will is quite significant. The trustees are empowered in their discretion, through the agency of a revocable power of attorney, to commit the management of certain of the trust estates to the beneficiary, but preserving in themselves the title and resuming control wherever they should deem it advisable. It is impossible to reflect upon these provisions of the will without a resultant conviction that the testator contemplated and provided for two separate duties to be performed by his representatives; one as executors and the other as trustees; the latter to commence at the termination of the |