120 N.Y.S. 308 | N.Y. App. Div. | 1909
David Hiscox died January 25, 1906. He left a. will dated October 6,1905, and proved March 19, 1906. • On the same day his sons, Everett S. Hiscox and Jesse F. Hiscox,. qualified as executors. At the time of his death he was engaged in the business of the manufacture and sale of proprietary medicines .and toilet articles. By his will he provided, among other things, as follows : “ I.appoint my two sons, Everett S. Hiscox and Jesse F. Hiscox, as my executors, to carry on the business now conducted by me under the name of the Hiscox Chemical "Works, and to continue and conduct said business under said name during the lives of my said sons, Everett S. Hiscox and Jesse F. Hiscox, and the survivor of them, or in case all my debts and obligations owing by me shall be fully paid and discharged.’'’ He then gave directions as to how the profits arising from his business were to be used by the said executors, and, among other things, provided that they were each to be paid the sum of $3,000 annually for all services which they should render to the business of the Hiscox Chemical Works, unless the profits of said, business amounted to more than ■ $32,000 a year, in which case there was a provision for an increase of - salary. The testator was the owner of certain trade inárks used in connection with the said business, and of certain formulas in accordance with which the articles above referred to were manufactured. The business was a lucrative one. There was some evidence that in the year immediately preceding his death the profits were in the neighborhood of $32,500. After liis death the business was carried on by his sons, the above-named executors, and although the exact amount of the' profits therefrom during the years 1907 and 1908 is not disclosed, it does appear, that these profits were considerably larger than during the. last year of the testator’s life. In May, 1907, Harriet M. Hughes, a daughter of decedent and a legatee under the said will, instituted proceedings to compel these executors to account. Thereafter they filed a petition for a voluntary accounting, and the proceedings were thereupon consolidated: . To the account filed in the
The excuses offered by these accounting executors for failing to charge themselves with these valuable assets and income of the estate are, first, that some of the provisions of the will are invalid. Whether the directions contained in the will for the distribution of the income or for the ultimate disposition of the principal of the estate are valid or invalid, it is their, duty to collect the assets of the estate, and if they carry, on the business to receive and retain the profits of the business until properly instructed by a court of competent jurisdiction in regard to the distribution thereof. Second, that the good will, formulae and trade marks above referred to are of little value and that not easy, to ascertain. It is no answer to say that they do not know what the good will of the business is worth. It is their duty to make an honest effort to find out. Nor is it any answer to say that the trade marks are of little value without the
In the present state of tiie accounts of these executors we think that the court had no power to direct this payment. The creditors of the decedent, under the terms of the will and under the terms of the agreement hereinbefore referred to, may have claims upon the income of this business prior and superior to those of the contestant
Woodward, Jenks, Thomas and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Suffolk county modified in accordance with opinion, and as'modified affirmed, without costs to ' either party as against the. other.