8 Paige Ch. 412 | New York Court of Chancery | 1840
Taking the will in connection with the several extrinsic facts and circumstances stated in the complainant’s bill, I have no doubt that the testator contemplated the continuance of the complainant, by the other executors, as the book-keeper and financial agent of the estate, as he had been of the testator himself, so far as the services of such an agent were necessary; and that the testator could not have intended to allow him a salary for the ordinary discharge of the duties of a joint executor merely. The term special services, necessarily means something more than the ordinary services which the other executors would be required to perform personally. And this provision appears to have been inserted, at the end of the will, probably upon the suggestion of counsel, to enable the other executors to continue him as such confidential agent and book-keeper, &c.; and to pay him for such services a compensation which they would not have been authorized to allow him without a special provision in the will to that effect; the law having settled the compensation to which he would be entitled, and the courts not being authorized to allow the executors any greater compensation even for extra services. So long, therefore, as the complainant continued to perform such extra services as were contemplated by the testator, it "was the duty of the other executors to allow him such compensation therefor as those extra services were worth, in addition to his share of com
I am also satisfied that the subject of compensation for such extra services was under the control of the majority of the executors at all times ; and that it was their duty to have increased or diminished the amount, from time to time, as the value of such extra services changed. And that the complainant, on the other hand, was not bound to perform any such extra services, unless they were willing to allow him what was reasonable therefor. In other words, this provision in the will was not intended to give the complainant a fixed and permanent salary during the continuance of the trust, without reference to the extra services which it might be necessary for him to perform. But it was a special authority to the other executors to agree with him from time to time to perform these extra services, and pay him a reasonable salary for such services ; which they could not have done without a special authority in the will for that purpose.
The claim set up in the bill cannot, therefore, be sustained. The demurrer must be allowed, and the bill dismissed with costs.