92 A.D. 5 | N.Y. App. Div. | 1904
Daniel W. Northup died on the 9th day of June, 1893, a practicing lawyer in the city of Brooklyn, leaving a last will and testament, in and by which he named the Long Island Loan and Trust Company as his executor; the will was duly probated by the surrogate of the county of Kings on the 13th day of September, 1893 ; the executor qualified and ever since that time has been acting as such. No accounting was ever had until the present proceeding. On the 3d day of July, 1900, the executor, by its secretary, verified a petition, praying that its account might be judicially settled. This was presented to the surrogate and was met with several objections, by William J. Courtney, as special guardian of two of the infant children of the deceased. Upon the matters in difference thus defined, a mass of testimony was taken, and the surrogate has surcharged the account of the executor with several thousand dollars. From the decree entered upon the findings of the surrogate, the executor and Dwight Northup, a son, have taken this appeal.
But three of the items of the executor’s account are now open to dispute. The first is that known as the “ Stewart ” claim. In the year 1888 one James Stewart died, and his son filed a petition for the probate of a paper, dated in 1881, which purported to be the will of the deceased Stewart, and at the same time one Aliaban filed a petition for the probate of another paper, dated in 1887, which purported also to be the last will of the deceased Stewart. Daniel W. Northup, the testator here, with William D. Yeeder, as counsel appeared in these proceedings for James C. Stewart and others, and rendered legal services which covered a -number of years and involved a large amount of arduous labor. The deceased and Yeeder had been paid a considerable sum of money on account of their services in this matter; the litigation went through the late General Term, and was decided once in the Court of Appeals, and
It thus appears that the conversation between Messrs. Northup and Yeeder in relation to the amount of their compensation to and including the settlement of the Stewart litigation, and the manner in which it should be paid, occurred before the agreement, from which we have quoted, was signed; that agreement, executed by the heirs of the Stewart estate, acknowledged in terms an indebtedness in this matter of $4,500, and thereafter the declaration of trust' by Dooley was delivered to the attorney for the appealing executor, by him recorded, and the property on Clifton place was transferred to Dooley for the benefit of the estate it was administering with its positive consent. The title to the Clifton place premises is, however, conceded by all parties to be unmarketable for reasons it is unnecessary here to discuss. It is clear that this condition of the title could have been discovered by the executor at the time Mr. Dooley took the title with the exercise of reasonable care. There is evidence, however, tending to show that no examination of the title was made by any one at that time. Efforts have been made to dispose of this
But aside from that, there was no binding agreement or understanding of any kind between the testator and the representatives of the Stewart estate that the Clifton place property should be taken by Northup and Yeeder in part payment of the services to which they were entitled. On the contrary, it appears that subsequent to the talk between the deceased and Yeeder, in which the former suggested the taking of this property, he prepared an agreement between those interested in the Stewart estate, ultimately signed by all of them, in which it was distinctly provided that the estate was indebted to Northup and Yeeder in the sum of $4,500, and no mention is made there of the Clifton place property and no reference pointed to any other understanding, suggestion or contract that the debt was to be paid by any other commodity than cash. All the facts here stated could readily have been ascertained by the executor of Mr. Northup’s will if it had taken any steps to ascertain the truth in relation to the indebtedness of the Stewart estate to Northup,
The indifference of the executor toward this Stewart item is further evidenced by the negligent manner in which it has dealt with it since Dooley actually took the title and declared his trust in favor of Northup’s estate and Mr. Yeeder. Dooley collected rents for four years, and although there is in his hands a considerable balance of these rents, after paying lawful charges, the executor has never made any effort to collect this balance from him. And the same appears to be true of Mr. Yeeder, who has since 1897 collected the rents; he has in his hands a considerable sum of money as proceeds of the rent.
The learned surrogate has found that $3,000, the share of the estate of Daniel W. Northup, deceased, in the claim of $4,500, could have been collected by the executor of the will of Daniel W. Northup, deceased, within one year after its appointment as snch executor. There is abundant evidence to support that finding of fact and it cannot be disturbed on this appeal.
The second item of the executor’s account in controversy is an indebtedness from one Yosburgh, to the deceased, for services rendered by the latter in his profession as a lawyer during his lifetime. Wright Du rye a and William Duryea commenced an action against William O. Yosburgh in the year 1886 and the testator was retained and appeared for the defendant. This litigation was hard fought and extended over a period of time from the "date of the commencement of the action until after the testator’s death. On the first trial the jury disagreed; the second trial resulted in a verdict for the defendant. The late General Term affirmed the judgment entered upon the verdict, and on appeal to the Court of Appeals that court reversed the judgment and ordered a new trial. The
Upon the trial below the executor seems to have abandoned its theory that it was not negligent and has sought to show a full payment of this item by Vosburgh before his death. We have examined the proof in this particular and are convinced that there is no such preponderance of the evidence showing that Mr. Forthup had been paid in full as to call for a reversal of the .surrogate’s disposition of that item.
The only other item in dispute is that of eighty-eight dollars, paid by the executor to Joseph Breaznell for legal services. - It clearly appears that, in the service for which he was paid this sum, Breaznell was employed by Stewart A. Robinson, the executor of the Stewart will before referred to, and Breaznell testified that whatever he did with reference to the settlement was performed for th'e executors of the Stewart estate, and not for the estate of Forthup, and that the attorney for this executor “ left the closing to me, for I was acting for Stewart A. Robinson, * * * and I represented the Stewart estate only on this settlement.” The learned surrogate was, we think, quite correct in holding that the executor’s account should be surcharged with this item, for it appears to be paid for legal services to a lawyer who was representing adverse parties.
This discussion leaves but one further matter to notice. Dwight Forthup, the eldest son of Daniel W. Forthup, deceased, a child by the latter’s first wife and a legatee and residuary beneficiary named in the will, has appealed from the decree of the surrogate, and makes the point that the claims for compensation for services which existed in favor of the deceased in his lifetime against the Stewart estate and Vosburgh passed to him under the will, and hence the appealing executor properly has had nothing to do with their collection, and no obligation rested upon it to exercise any degree of care or diligence in respect thereto. It is very clear that Dwight Forthup, appellant, and the executor, appellant, have adopted this view of the will but recently, and we think their former notion in respect to it was correct. The 3d clause of the will reads as follows : “ Thirdly: I give and bequeath to my son Dwight all my law business, law books, papers, safe, bookcases and office furniture, and all property pertaining to- my business. - Also my stock certificate
. cited by the learned counsel for the appellant in support of his com tention, and it will be observed that in every case, excepting Hotham v. Sutton
The surrogate directed that the costs and expenses of this proceeding should be borne by the executor personally, and it is asked that we modify the decree so that it may be relieved of this burden. It was in the discretion of the learned surrogate whether' the executor should he charged personally, and unless there has been an abuse of that discretion we may not interfere. (Matter of Selleck, 111 N. Y. 284.) We are not convinced that the surrogate abused his discretion ; as far as the Yosburgh and the Stewart matters were concerned the executor has acted with great laxity and almost inexcusable negligence, although there is no intimation of any improper motive. Generally speaking, an executor will he directed personally to pay the costs where he denies assets, and they appear. (Estate of Mull, 16 N. Y. St. Repr. 981.)
The decree of the surrogate is in all respects proper and should be affirmed..
All concurred, except Jbnks, J., not sitting.
Decree of the' Surrogate’s Court of Kings county affirmed, with costs.
15 Ves. Jr. 319.
5 Mad. 69.
Sparks’ Appeal (89 Penn. St. 148).