Misc.] County Court, Greene County, January, 1896. performed by him under the contract between him and Truman Sanford constitute a complete contract, and is a perfect defense to a claim for his personal liability on the bond in suit; that while a written release would be evidence of the performance of the contract, yet the facts proved by parol are equally available as a defense. It seems to me that this point is weighty and important. I do not care now to discuss this point, but will hold with the defendant in his conclusion. The defendant Fletcher B. Story makes a further defense to the claim of his liability on the bond. He claims that subsequent to the conveyance of the mortgaged premises by him to his father and mother, the defendant Amos Story, brother of Fletcher, and who acquired his mother's interest in said premises, made an agreement with Truman Sanford, executor as aforesaid, on behalf of himself and his father, that the rate of interest on the bond and mortgage in question should be reduced from six per cent to four; that pursuant to such agreement the payment of said bond and mortgage was extended from year to year; that in each year since 1886 interest on said bond has been paid at the rate of four per cent; that the value of the mortgaged premises at the time of the maturity of the mortgage was $3,000, and has since depreciated until, at the time of the commencement of this action, it would not sell for more than $1,500. Defendant Fletcher B. Story claims that this change in the rate of interest is a material alteration of the bond, and that he was thereby released. It is admitted that subsequent to the conveyance of the mortgaged premises to his father and mother Fletcher B. Story became a mere surety on the bond. Paine v. Jones, 76 N. Y. 274. It is also admitted that if a valid contract was made reducing the rate of interest from six per cent to four per cent without the consent of the surety, it was such an alteration of the bond as would release him from all obligation to pay the amount secured by the bond or any part thereof. Bank v. Webster, 1 Month. L. Bul. 70. A contract which will discharge the surety must be founded upon a consideration. An agreement without a consideration in it could County Court, Greene County, January, 1896. [Vol. 15. not be enforced and would not discharge the surety. Reynolds v. Ward, 5 Wend. 502. A mere acceptance of four per cent, although the holder of the mortgage says that the rate shall not be more than four per cent, does not release the surety. The only witness upon this part of the defense was Amos Story. He says that a year or two before the mortgage became due, he had a conversation with Mr. and Mrs. Sanford in relation to the rate of interest upon the bond and mortgage in question. His testimony is substantially as follows: "I asked Mr. and Mrs. Sanford if they would take the money on the Hill bond and mortgage. Truman said it was not according to contract, it was not due and he would not accept it. I said that he ought to let me have it because I could get a lower rate of interest, four per cent, of Thompson King. They said I could have it at that. Then I asked for a writing at four per cent, the same as Mr. King had offered. Truman said, let it be as it is without a writing." The witness stated that he had seen Mr. King and he had promised to let him have the money at four per cent. After this time interest was paid at the rate of four per cent. So far as this contract has been executed it is undoubtedly binding, or at least may be made so, but if it is without consideration, so far as it is unexecuted, it is void and the mortgagee could repudiate it. McKenzie v. Harrison, 120 N. Y. 260. Defendant claims that there is a consideration expressed in it. Firstly, Amos Story bound himself to pay the interest, but I fail to find any such agreement in the contract. It would be doubtful whether Amos Story could bind himself to pay the debt of a third person without an agreement in writing subscribed by him. Secondly, it is said Amos Story deprived himself of the right to borrow the money of Mr. King, but I find no provision in the arrangement made which deprived the Storys of the right of borrowing the money of Mr. King or of any other person at any at any time. Thirdly, it is claimed that the time for the payment of the bond and mortgage was extended by this agreement. Nothing was said in the conversation about extending the time of payment, and I find nothing which Misc.] would deprive the Storys from paying the bond and mortgage when they became due or upon giving the notice stipulated in the instrument. For these reasons, I disallow the defense which is based upon the reduction of the rate of interest from six per cent to four. Surrogate's Court, Westchester County, January, 1896. The complaint is dismissed as against Fletcher B. Story, and judgment of foreclosure and sale is directed against the remaining parties defendant. Ordered accordingly. Matter of the Judicial Settlement of the Accounts of FRANK CURTISS et al., as Executors and Trustees Under the Will of ABIJAH CURTISS, Deceased. (Surrogate's Court-Westchester County, January, 1896.) 1. EXECUTORS AND ADMINISTRATORS— DOUBLE COMMISSIONS. Where the residuary estate is given to the executors in trust to sell and invest the proceeds, to pay the income to testator's widow and children during their lives, and the principal at their respective deaths to their heirs or next of kin, their duties as executors and as trustees are separate and distinct, and they are entitled to double commissions. 2. SAME SECURITIES RETAINED IN THE ORIGINAL FORM. Where the estate is given directly to the executors and trustees they may elect to take and retain the securities in the form they were left by the testator, where it is unnecessary to convert them for the purpose of paying debts and legacies, and in such case are entitled to have such securities considered as cash for the purpose of computing their commissions as executors. 3. SAME-SALES OF REAL ESTATE. In such a case the executors, as such, are not entitled to commissions upon real estate sold, where such sales were not necessary for the payment of debts or legacies. 4. SAME-ADMINISTRATOR WITH WILL ANNEXED. Where the persons named in a will as executors and trustees are permitted to resign after the amount of the residuary estate has been ascertained for the purposes of the trust, an administrator with the will annexed should not be appointed, as only trust duties remain to be performed. Surrogate's Court, Westchester County, January, 1896. [Vol. 15. APPLICATION to settle decree on resignation of trustees. Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for executors. Potter & Johnson, for Caroline C. Johnson. William P. Fiero and J. Q. A. Johnson, special guardians. SILKMAN, S. The court, upon the application of the petitioners, permitted their resignation, but upon condition that trustees' commissions upon the principal of the trust estate be waived. The authority for imposing such a condition is found in the case of Matter of ́Allen, 96 N. Y. 327. The court intended that the petitioners should have commissions as executors, but none as trustees, upon the principal of the trust. It was directed that the decree to be entered should be upon notice, and now the settlement of the decree to be entered is before the court for consideration. It is urged by the special guardians with much insistence: First. That the petitioners would not be entitled in any event to commissions in the two capacities, as executors and as trustees, because, as is claimed, the functions and duties of executor and trustee co-exist and run together, and that the will does not provide for separate and successive duties. Second. That the decree entered on the 17th day of June, 1891, is not conclusive as to the allowance of commissions, because the life beneficiaries only were made parties to the proceeding, the infant cestuis que trust not having been cited, and Third. That the duties to be performed under the will are not duties which can be performed by a substituted trustee, but must be performed by an administrator with the will annexed. The testator by the seventh clause of his will provided as follows: "All the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and wheresoever situated, I give, devise and bequeath unto my executors here Misc.] Surrogate's Court, Westchester County, January, 1896. inafter named, their survivors, successors and assigns, in trust, however, to take the same in their possession, to convert the same into money without needless sacrifice, subject to the exceptions above set forth, to invest the same in such securities as they may from time to time see fit, whether they are the securities recognized by law for investment by executors and trustees or not, to continue in their discretion any investment which I have made and to dispose of the same as follows, viz.: The said residuary estate shall be divided into two equal parts, to be separately invested, to be known as Funds No. 1 and 2. "Fund No. 1 shall for purposes both of division of income and principal be divided into shares, one share for each of my surviving children and one share for each child of mine. that shall have died before me leaving issue, and for the purposes of such subdivision and apportionment the amount of any balance appearing on my books at my death against any child of mine or any sum which shall be owing to me except as above released shall be considered, not as a debt, but as an advancement, and shall be counted as cash in making up the apportionment aforesaid, and the share of each child shall be less by such amount than it otherwise would be. "I direct my executors to pay over or apply the net income of each child's share ascertained as above stated to his or her use during the term of his or her natural life, except that no more than fifteen hundred dollars a year shall be paid or applied to the use of my son Frederick during his minority. I also authorize and empower them or the survivor of them or their successors in the trusts, in their discretion, to make to each child advancements out of the principal of each one's share so held in trust for them respectively as may be deemed for their highest good in the following sums :" Testator then names the times at which the part of the principal may be advanced to his children respectively. He then provides: "The net income of the respective sums so held in trust for my children shall be paid to them or applied to their use during the term of their natural lives for their |