14 Mills Surr. 115 | N.Y. Sur. Ct. | 1915
Upon the judicial settlement of the account of the executors certain persons claim that they are legatees under the third paragraph of the seventh clause of testator’s will. It is therefore necessary to construe this clause in order to determine the validity of those claims. The.relevant parts of the paragraph are as follows: “ I further give and bequeath
The claimants herein, Mary C. Sullivan and Mary Riley, were in the employ of the corporation of B. Altman & Company at the time of testator’s death. Mary C. Sullivan entered the employ of the testator on October 1, 1894, as a piece worker, and continued in his employ in such capacity until September 25, 1899, when she became a salaried employee. She continued as such salaried employee until the time of the testator’s death. Mary Riley was employed by the testator as a piece worker on October 7, 1896, and she continued in that capacity until February 11, 1901, when she became a salaried employee. Piece workers were not paid a regular salary, but received compensation for each piece of work made or completed by them. They worked on the premises occupied by the department store of B. Altman & Company; their hours of labor were regulated .by the company, and they were under the control and management of the persons in charge of the store.
Mary C. Sullivan was- in the employ of B. Altman & Company as a piece worker and salaried employee for about nineteen years, and as she wa-s in the employ of the corporation at the time of testator’s death she would be entitled to- receive a bequest of $1,500 as a member of the second class mentioned in paragraph 3 of clause 7 of the will, if the number of years which she worked as -a piece worker may be added to the number that she worked as a salaried employee in determining years of
It is evident that the testator intended to show 'his appreciation of the loyalty and efficiency of those of his associates and employees who had been connected with the conduct of his business for a number of years, and that this substantial evidence of appreciation was to be regulated by the number of years of service. Long service would be an indication not only of efficiency as ‘an employee, but also to some extent of personal interest in or identification with the business as distinguished from a merely financial interest. Undoubtedly, it was to show his appreciation of such personal interest in the business that he made the bequests to the employees. Piece workers, however, have not the same general- interest in the business that' salaried employees have; their compensation is not dependent upon the management’s appreciation of their work or the results which they achieve for the business, but upon the amount of work which they do. They are to some extent independent contractors.. ■ That the testator did not intend to place them in the same category as salaried employees is manifest from the last clause of the paragraph above quoted. As he expressly discriminated against them and excluded them from the bequests intended for salaried employees of a certain length of service, it is reasonable to assume that he intended to exclude from computation in ascertaining such length of service the number of .years in which any employee was employed as a
Each of the executors will be allowed $36,322.13 commissions. No commissions will be allowed on the money received by the executors on account of the mortgage executed by them on real estate specifically devised.
Decreed accordingly.