8 N.H. 444 | Superior Court of New Hampshire | 1837
The first item in controversy, in this case, is the sum of § 142.37, charged by the executor for commissions on the sum of ,$5694.70, accounted for in his first account, on which no commissions were then charged.
We are of opinion that this claim ought not to be allowed. In relation to the articles of personal estate delivered the widow, or retained by the executor, in pursuance of the will, and the note against T. West, which by the will was to be given up to him, there is no ground for a charge of commissions, which are sometimes a proper charge for the risk and trouble of receiving, holding, and paying out monies. In regard to the accruing interest, with which the executor charged himself in his first account, that by the will belonged to Mrs. West, and he discharged himself from it by a charge of the same amount paid over to her. The mere collection and payment of that interest is not, as will be shown hereafter, a proper charge upon the principal fund ; but if the executor was entitled to receive any thing for that, it should have been charged upon the income, and
The next item in the present account, is for commissions on certain monies received since the rendition of the first account. This, with the two following items, for time, trouble and responsibility in taking care of and preserving the monies belonging to the estate, may be considered together. There is a wide difference between the counsel, in relation to the principies which should govern this part of the case ; the counsel for the executor contending, that all his charges, as well those for collecting and paying over the interest to Mrs. West, as for collecting, preserving, and fiually paying over the principa!, are expenses of administration, and are properly charges against the fund itself, going to lessen its amount, and thereby reduce the interest to be paid her; and that she is no other way to be accountable, or subjected to charge, being entitled by the will to six per cent, interest on the principal — while the counsel for the present claimants of two thirds of the residuum argue, that nothing is to he deducted from the principal sum except the charges for collecting and placing the monies in the hands of the executor; or in other words, that nothing beyond the expenses of ordinary administration is chargeable upon the fund itself; that when the principal sum is ascertained, that sum is by the will secured to B. West, T, West, and the executor. They admit that the executor is entitled to compensation for services subsequent to this, but say that all charges for the preservation and custody of the principal, as well as those for collecting and paying over the interest, are properly chargeable upon the income, and are to be deducted, as they occur, from the annual interest payable to Mrs. West.
We are of opinion that neither of these positions can be
In addition to this ordinary duty of an executor, there is another superadded by the will in this case. The will provides, not merely for an ordinary administration, but for a trust in the hands of the executor, to continue during the
On the other hand, the argument of the claimants gives too rigid an interpretation on that side. If a portion of the principal should be lost by some unforeseen contingency, against which no prudence of the executor could guard, and without any fault on his part, is he to be charged in such case with the loss, and to be accountable still to Mrs. West, for interest on the amount so lost, and to the other legatees for the principal, on her decease? It seems not. 13 Pick. 332. Or if some portion of the fund was in jeopardy, without his fault, and expenses should be incurred in providing for its security, unless the executor is an insurer, and authorized to charge as such, the expenses would be for the benefit of those entitled to the principal, as well as for the benefit of the annuitant, and should be a charge upon the fund itself. The executor is not obliged to keep the fund in his
But the mere collection and payment of the interest is a service performed, in this case, for the benefit of Mrs. West, and is a proper charge upon the income. 12 Pick. Rep. 183. When the testator gave the interest to Mrs. W. he must have intended the net interest, after the payment of the proper charges of collecting and paying it over ; and so when he gave the principal, and the purchase money, to the others, he could not have intended to exclude such reduction of it as might occur before it became payable, for the services of the executor, in its custody and preservation. In relation to these matters, the testator did not deem it necessary to make any special provision. The clause relating to debts, and expenses of administration, was intended to exclude a construction that Mrs. W. should be entitled to interest on the whole amount of the money ; and the same construction must have been given to the will, if that had not been inserted.
The case stands in relation to these matters precisely as it would have done if the testator, instead of leaving the property in the hands of the exeeutor, and thereby author-
The expenses of collecting and investing the fund, of its subsequent care and custody, and of finally recalling and paying it out, may be considered as-properly expenses of administration. The services in receiving and paying over the annual income, were in the performance of a trust, for which, in this case, the testator may perhaps have supposed no charge would be made, by reason of the relationship of the parties.
The sales of the real estate were in pursuance of the provisions of the will; and the same rule applies to the monies received upon those sales, as to monies collected on debts.
Upon the appeal of the executor, therefore, we have concluded to allow two and an half per cent, commission on, the principal of the monies collected and received since the rendition of the first account.
And we are further of opinion, that in ordinary cases Of a trust, five per cent, annually is as great an interest as should be exacted of a trustee; or, in other words, when the trustee accounts for six per cent, interest annually, one per cent, is a proper compensation to be allowed for the care and custody of the funds, and for collecting the income.
In this case, as the income goes to one, and the principal eventually to others, part of the service for which the per eentage is allowed was for the benefit of all interested, and
It remains to consider the appeal on the part of the claimants of the two thirds.
We are of opinion that their motion to charge the executor with the $500, received of Ingersoll and White, was rightly overruled. The transaction between them and the executor cannot be regarded as a sale of the land. If it could be, the appeal might be sustained. But, although the testator had an absolute deed of the farm, he treated it as mere security for a debt, up to the time of his decease. And it was so treated afterwards by all interested. The legatees, B. and T. West, assented that the debt should be received and the land discharged. The attempt of Inger-soll was to redeem. Difficulties arose as to the manner. The executor refused to convey in such manner as might prejudice a subsequent incumbrance to the wife of White ; and the mode in which the conveyance should be made, on the payment of the money, was finally agreed by Ingersoll and White. The executor received the debt, and he received, also, of them, a sum in addition to it. Whether this be designated as a compensation for his trouble, as the executor states it, and if so, whether the amount be large or small; or whether it be called bonus or extra interest, these claimants seem to have no title to it. If it was received as compensation for services, it belongs to the executor. If Inger-soll and White saw fit to make a very liberal allowance, that does not alter the case. If it was received as extra interest, which the auditor does not find, although in that case the executor might be liable to pay it back, he is not accountable for it to the claimants on the settlement of his administration account, It is true, as argued by their conn-
With the value of the timber taken from the Brainerd lot, the executor must be charged.
The argument of his counsel, made on behalf of the surety, that the executor, if liable at all, is liable personally for waste — that cutting the timber or directing it cut, was no act of his as executor, and that his authority by the will was strictly an authority to sell the land, with the consent of Mrs. West — cannot avail to discharge him from accounting for property which clearly belonged to the estate, and which has come into his possession and use. He had authority by the will to sell the land, with the consent of Mrs. West. If this gave him no right to sever the timber, and then sell the land, still when the timber was severed by him, or by his directions, and the timber itself, or the avails of it, came to his hands, he was bound to account for it as executor.
If his act in severing the timber was tortious, when severed the title was not changed, and the interest of B. West and others in the land being contingent, and having been since defeated by the sale, the avails of the timber became personal estate in the hands of the executor, to be disposed of in the same manner as if he had sold so much of the land. It is not for him to deny that his act in disposing of it was an act of administration. He might as well allege that he had converted any other of the personal property, and that in so doing he acted in his individual right, and was therefore not accountable as executor. And what he cannot allege, his surety cannot allege for him in this mat
This construction seems not only founded upon sound principles, but is necessary in order to preserve the interest of Mrs. W,, who is in justice entitled to interest on the value of the timber.
Had the executor, instead of severing the timber and then selling the land, sold each separately, without any severance, and carried the avails into his administration account ; according to the argument, this would have been equally without right, but would it have been waste, or such a tortious act that those who had the contingent interest in remainder could have recovered against the executor, or the purchaser who severed it, the value, in damages, in an action on the case? Certainly not. Nor could they have recovered for the timber, as money received to their use. If they could have maintained any action, it could only have been for the amount of injury sustained by the sale in this mode, instead of an entire sale. The executor could not change the rights of those interested, by first disposing of the timber, and then selling the land in pursuance of the provisions of the will.
It was thereupon Ordered and decreed by the court, that