79 Vt. 323 | Vt. | 1906
This was an appeal from the allowance by the probate court of the account of Horace F. Moore, as executor of the-will of Burrill Fane, presented by the administrator of said Moore’s estate. The case was heard by the comity court on the report of a commissioner, and judgment was rendered allowing the account as allowed and reported by the commissioner. The appellants excepted.
Item 61 of the account is a credit of $500- to- the executor for services. It appeared that Burrill Fane died February 24, 1877, leaving an estate worth some $12,000. This was disposed of by a will in which Horace F. Moore was named as executor. Moo-re. qualified and acted as such until his death, January 31, 190-1. -The will provided that a certain portion
The first question before this Court is simply whether as matter of law, this item should have been disallowed in the judgment rendered by the county court.
The statutes of this State provide that every executor shall render an account within one year from the time of receiving his letters testamentary unless the probate court extends this time and that he shall render further accounts as required by the court until the estate is settled; that the probate court shall examine every executor upon oath as to the correctness of his account before the same is allowed, excep-f when no objection is made to- the account, and its correctness is established by competent testimony. The filing of an ac-' count within the time provided by statute is wisely required, and in determining whether compensation shall be allowed an executor, and if compensation is allowed, in determining the amount of the compensation, failure to file an account as the law directs is an important circumstance to- be considered in connection with other facts that have a bearing upon the question of what the just deserts of the executor are; but we
In some states it is provided by statute that an executor who fails to file the accounts provided for shall receive no compensation, and other states formerly had such a statute which has been repealed. Decisions under such a statute are obviously of no assistance here. But the policy of our Legislature has been to- stop- short of any such arbitrary rule. The principles which have governed our Court in the matter of compensation are in a general way shown by the cases which have been cited in the briefs of counsel. The cases decided by this Court cited on the one side or the other, are as follows: Hapgood v. Jennison, 2 Vt. 294; Foster’s Executrix v. Stone, 67. Vt. 336, 31 Atl. 841; Spaulding v. Wakefield’s Estate, 53 Vt. 660; In Re Hodge’s Estate, 66 Vt. 70, 28 Atl. 663; Woods v. Creditors, 4 Vt. 256.
No- one of these cases is inconsistent with the view taken here and some of them support it. It is strongly supported by Hapgood v. Jennison, 2 Vt. 294, a case which commended itself to' the Massachusetts Court when that Court had to do with the same matter that had been before our Court. Jennison v. Hapgood, 10 Pick. 77.
The principles which in this jurisdiction determine the allowance and the denial of compensation to- administrators and executors have been recently considered and applied in Walworth’s Est. v. Bartholomew’s Est., 76 Vt. 56 Atl. 101, and it accords with the opinion and the decision therein to treat the allowance of compensation in the case at bar as proper under the findings o-f the commissioner.
A part of Burrill Lane’s estate was a city house and lot. At the time of said Lane’s death, Horace L. Moore with his wife, daughter and his wife’s sister, Mary C. Lane, resided upon said place. Moore’s wife, Maria E. Moore, was one of the residuary legatees under the will of Burrill Lane and in January, 1880, it was agreed that she should take the place in satisfaction and payment of her residuaiy legacy and as -Horace L. Moore could not deed directly to his wife, the arrangement was carried out by his deeding to his wife’s sister, Mary C. Lane. The deed was delivered at the time of its execution, but was not left for record until shortly after the death of Horace L. Moore, when it was put upon record. At about the time it was left for record, Mary C. Lane deeded the place to Maria E. Moore. The Moores had continued to occupy the place down to the death of Horace L. Moore. The commissioner charged the executor with the rental value of the place down to January 19, 1880, the time when Moore as executor deeded it to Mary C. Lane. The appellants claim that the executor should have been charged with the rental value of the place down to his death. They point out that the taxes on the place were assessed to Burrill Lane’s estate and that receipts for their payment ran to the estate. But the commissioner finds that in fact the taxes were not paid by the estate, but were paid by Horace L. Moore or his daughter. The commissioner also finds that sewer assessments were paid by the daughter, and that such repairs as were made after January 19, 1880, were paid for by Horace L. Moore, his wife or daughter. There is nothing in the report nor in any
* The appellants claimed before the commissioner that the estate of the executor should in the accounting be charged with waste under V. S. 2412, and that claim, is urg'ed here as one that arises on the report and the judgment thereon. The section in question reads as follows: “When an administrator neglects or unreasonably delays to. raise money by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened, or unnecessary cost or interest accrues, or the persons interested suffer loss, the same shall be deemed waste, and the damages sustained may be charged and allowed against him, in his account, or he shall be liable therefor on his bond.” With respect to1 this claim as made here it is enough to. say that the report negatives the thing's which are essential to- the sustaining of charges for waste under the statute invoked.
The remaining questions argued in this Court relate to the effect to be given to. a certain paper signed by Edward B. Lane, one of the appellants, purporting to. be a receipt and a release given to. the administrator of Horace E. Moore’s estate. But the conclusions reached on the questions already
Judgment is affirmed and is tó be certified to the Probate Court.