18 N.Y. St. Rep. 985 | N.Y. Sur. Ct. | 1888
The only question debatable in this proceeding arises on the exceptions to the referee’s disposition of the claims made by the executors for the allowance to respective counsel, as compensation for professional services
In this ease, one executor qualified first, and went about his official duty promptly and properly. Every act on his part was the result of a clear appreciation of his office. He was under no moral or legal obligation to look up-any one or all of the persons named in the will as co-executors, and invite-them or notify them to qualify; and, on the other hand, the fact of his first qualifying gave him no right in office in the least superior to them when they should qualify. After qualification they would stand equal before the law, and in the precise attitude that the deceased wished and expected when he named them in the will; and, except for misconduct, they could not be removed, nor their powers, as set out in their letters of appointment,—the will, —be limited or restricted. If, in the course of an honest effort on their part,, individually, to carry out the wishes and will of the deceased, they differ in judgment, and thereby little or much additional expense should be incurred,no one should feel surprised. Such a contingency must almost surely arise-in the administration of the affairs of any large estate. So, also, if, as in this case, the executors were compelled to seek the aid of the court for safe guidance of their judgment, discretion, and power in procuring a construction of' the will, their acts in that regard are to be those of careful, prudent men, acting honestly on a line of duty dependent upon individual judgment, not upon-a line marked out by one of their number.
In considering this case, we should inquire whether the executor last qualifying has acted in harmony with these principles. I fail to discover anywhere, in the facts or in the law, anything to the contrary. The simple avoirdupois of this case is enormous, and only after much labor have I possessed myself of all its details essential for the decision of the question involved. The learned referee took the conservative view that but one counsel fee for all the legal services rendered to these executors, in aiding them in the discharge of their important duties,- can be properly allowed as a just and reasonable expense of administration. In this respect only, as already re