In re the Judicial Settlement of the Account of McCord

37 N.Y.S. 852 | N.Y. App. Div. | 1896

O’Brien, J.:

It is insisted that the services for which Albert McCord, Jr., claimed compensation outside of his commissions were only those which his official duty.imposed upon him, and the rule is invoked that an agreement allowing any other or greater compensation for such services, however meritorious, than the amount fixed by law, cannot be enforced. While this rule is settled and firmly supported by authority, .it is equally well settled that if services are performed by an executor, outside of his official duties, he may be allowed compensation therefor, and that an agreement to that effect, which is just and fair, will be enforced. There is, therefore, no trouble about the law, but the question in each case will reduce itself to one of fact as to whether the services rendered, and for which compensation is claimed, were those which the executor was bound to render in his official capacity as executor, or were those'which were outside of his official duties. .

In this case it. appears that the executor, during the lifetime of the testator, his father, was engaged at the same rate of compensation in collecting the rents and in cleaning and doing such repairs to the property as he was able. The agreement provides that he should continue to render similar services to the estate. It is no doubt within the official duty of an executor generally to take charge of the property and to collect the rents; and where such services alone are rendered, he could not recover more than the compensation allowed by law to executors. Here, however, the evidence shows that he did more, and in addition to taking charge of the property and collecting the rents, that he devoted his time daily to the care of the property, and did the cleaning, kalsomining and repairing and painting and all the repairs, with the exception of plumbing work and some plastering, and that this consumed his ' whole time; the testimony being that he went to the property every day about nine o’clock, and continued there until five in the afternoon. We think that the extra services thus, rendered were outside of his official duties, were not executorial, and were such, as the parties could legally enter into a contract with him to pay for. So viewed, we think that the agreement and the rate of compensation were fair and just, and after he has thus devoted his time to rendering such services for nine years under an agreement with the one who now objects, that it would be inequitable to deprive him of the compensation which she expressly agreed he should receive.

Stress is placed upon the finding of the learned surrogate, made at the request of this appellant, “ that the services rendered * * * consisted in the taking charge of the two houses, renting of the same and the collecting of the rents thereof.” It will not do, however, to have resort to a single isolated finding, because when we come to the decision in this case as made by the surrogate, and examine the testimony upon which it is based, we find the facts in regard to the character of the work performed to be as we have detailed.

Our conclusion, therefore, is that the agreement for extra compensation being for services entirely separate and distinct from the duties imposed upon an executor by virtue of his office, was just, fair and valid, and the contestant having had the benefit of the services so rendered, and having received without objection her share of the income during the entire period, receipting therefor, it would be inequitable to permit her now to repudiate her agreement.

"We think the decree was right, and should be affirmed, with" costs and disbursements against the contestant.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Decree affirmed, with costs and disbursements against the contestant.