107 N.Y.S. 277 | N.Y. App. Div. | 1907
The surrogate allowed one of the executors on his accounting extra compensation for continuing the business of the testator, and working therein, the will directing that the business be continued, but providing no extra compensation therefor to the executors.
At common law executors and administrators were not allowed any compensation for their services (Manning v. Manning, 1 Johns. Ch. 527). This remained so in this state until 1817, when the Legislature empowered the court of chancery “ to make a reasonable allowance to them for their services ”, on the Settlement of their accounts, and prescribed that when “ the rate of such allowance shall .have been settled by the chancellor,; it shall be conformed to in all cases of the settlement of such accounts” (Laws of 1816-1817, ch. 251; Mc Whorter v. Benson, 1 Hopk. Ch. 28). The chancellor thereupon adopted a general rule establishing a percentum on all moneys received and paid out as such compensation (3 Johns. Ch. 630). It was incorporated into the Revised Statutes of 1830 (Vol. 2, p. 93, sec. 58), and from there went into the Code of Civil Procedure (sec. 2730).
It follows that the statute compensation is all that an executor or administrator may be paid for his services. There can be no exception to this riile. If he be allowed compensation out of the estate of the deceased other than that fixed by statute, it cannot be for services in his office, but only for something he has done apart from and entirely outside of- his office, i. e., as an individual and
In Vanderheyden v. Vanderheyden (2 Paige, 287) the charge of .a guardian for the care and superintendence of the.infant’s real property, in addition to the statute compensation:—which,-is, the same in tlie case-of trustees and guardians as in the case, of executors — was disallowed; in the Matter of Bank of Niagara (6 Paige, 213) a receiver was. disallowed for his services as attorney and counsel in the'business of the trust; in Clinch v. JEckford (8 Paige, 412) one of the. executors was held entitled to extra compensation -for any sei*vices he should render as clerk and book- ■ keeper of the estate, b.ht only because the will expressly authorized it; in Lansing v. Lansing (45 Barb. 182) an executor worked out the highway tax of the testator instead of paying it or hiring another to work it out, and was allowed therefor in his accounting by the Genei'al Term of the Supreme Court; in Collier v. Munn (41 N. Y. 143) the charge of an. executor, who was an- attorney and counselor at law, for extra compensation for his professional services in defending an -action against the estate, at the request of his fellow -executors, was disallowed ; in the Parsee Merchant’s Case (11 Abb. Pr. [N. S.] 209) the- compensation allowed by -the Special Term was tó a committee of his person, there being a separate committee of the property, and the case therefore lias no application ; in Morgan v. Hannas (49 N. Y. 667) the charge of a-guardian for services rendered by him as attorney and counsel in the affairs of his ward was disallowed; in Lent v. Howard (89 N. Y. 169) an executor was allowed compensation for managing and improving the real .estate of the deceased, but only because as executor he had nothing to do witli and no duty whatever in respect of the real estate, the will imposing none; in Matter of Reed (12 N. Y. St. Repr. 139) an administrator who acted as attorney and counsel.on the settlement of the accounts of himself andiUssociates was denied costs or compensation therefor by the Surrogate; in Matter of Butler's Estate (9 N. Y. Supp. 641). compensation as clerk was denied to
From this review of tlie cases it is plain that ■ the rule as stated above is- settled. ' The decisions in Matter of Moriarity and Russell v. Hilton (supra) have to be disapproved. . In the case before ' us it would be agreeable to justice to allow the executor the extra compensation, but, as is often the case, though justice demand policy forbids. It is of great im-portauce that the rule be hot. departed from; Once relaxed, the asking and giving of extra compensation would grow apace and-become an intolerable abuse;
There is some evidence that .the three adult parties in interest agreed- in advance to the extra compensation, -but -there is no finding of fact on that head. But two of them consented in open court to the extra compensation. This cannot be construed as a consent that, the same be paid in full out of their shares, but only that their .
The decree is modified in accordance with the foregoing.
Woodward, Rich and Miller, JJ., concurred; Hirsohberg, P. J., not voting.
Decree of the Surrogate’s Court of Kings county modified in accordance with the opinion of Gaynor, J., and as modified affirmed, with costs to thé appellants payable out of the estate/ *