17 Mills Surr. 515 | N.Y. Sur. Ct. | 1916
This proceeding was commenced February'
On April 3, 1916, Boyd McDowell, one of the executors, filed an account setting forth in detail all the transactions had by him with reference to the estate, both, as he claims, as executor and as trustee.
On the same date Casper G. Decker and Jervis Langdon, the other two executors, filed separate verified statements in which they declare, in substance, that on the issuing of letters testamentary to the executors named in the will said Boyd McDowell caused an inventory of the personal estate to be filed; that thereupon the said Boyd McDowell took possession of the personal property left by the deceased, including bank deposits, certificates of deposit, cash, securities, etc., together with the keys to the safety deposit box, and that the said Boyd McDowell has had sole access thereto from that time on, and that all checks drawn on funds deposited to the credit of the estate of said deceased were drawn by said Boyd McDowell; that all books of account and everything in relation to the estate have been at all times in the possession of said Boyd McDowell, and they deny any connection with the management of the estate, except that they each, one or the other, countersigned the ch'ecks drawn by said Boyd McDowell, as executor.
On April 3, 1916, John G. McDowell, Clara B. McDowell and Elizabeth R. Boyd filed objections to the account as filed by executor Boyd McDowell. They also filed objections to the verified statements filed by executors Casper G. Decker and Jervis Langdon.
On April 6, 1916, executor Boyd McDowell, by his attorneys, filed an answer to the aforesaid objections.
On April 22, 1916, a supplemental citation was ordered issued by the surrogate to be served on all the remaindermen named in the will of the testator bringing them into this proceeding.
The testator died on July 4, 1909. His will was probated md letters testamentary were issued to the three executors, ¡vho thereupon qualified as such on July 8, 1909. The inven;ory was filed on September 4, 1909. The time within which creditors might present claims, pursuant to notice published, expired on January 15, 1910. The inventory showed the value >f the personal property of the testator at the time of his death x> be $148,980.49.
The will of the testator, dated July 29, 1907, first provided :or the payment of debts and funeral expenses, and, second, nade certain specific gifts of varying amounts to several persons and corporations. Paragraph 3 provided: “ All the rest, residue and remainder of my estate, both real and personal, property and rights, legal and equitable, of which I may die seized or own or have at the time of ,my decease, I give, devise md bequeath unto Casper C. Decker,. Jervis Langdon and Boyd McDowell, all of Elmira, N. Y., to have and to hold the same into themselves and to their successors in trust to the uses and tor the purposes herein declared, that is to say:
“ That they hold, manage, invest and re-invest all of said crust property as they shall deem wise and judicious and for the best interests of the beneficiaries hereinafter named, said trustees being to that end hereby empowered to sell, grant,- exchange, lease, hold or otherwise dispose of the same or any part thereof, subject to the limitations and provisions hereinafter contained (the avails or property into which the same may in any wise be lonverted being subject to -all the conditions hereof applicable to the original property or fund), and to lease, loan and invest the same as they shall deem discreet, and out of the rents, interests, income and profits thereof, first to pay the necessary expenses incident to the property, taxes thereon, expenses of insurance and repairs, and the full maintenance thereof, together
“ 1st. I hereby direct said Trustees to set aside and properly invest the sum of one thousand dollars ($1,000.00), to be known as the McDowell Cemetery Trust Fund,’ the annual income of which shall be annually expended in the care and maintenance of what is known as Riverside Cemetery ” '(with certain provision that the said $1,000 is to be eventually turned over to the county treasurer to be held by such officer for said purposes).
“ 2d. I direct said Trustees to pay to my sister-in-law, Elizabeth R. Boyd, of Elmira, N. Y., the income of ten thousand dollars ($10,000.00), as long as she shall live, and at her death the principal of said fund * * * shall be treated the same as the residue of said trust fund for the support of my son John G, and his wife Clara * * *.
“ 3d. Out of the remainder of the annual income derived from said Trust Fund I direct said Trustees to pay to my son John G. McDowell, and his wife Clara during the life of my son, such sums in such manner and proportion for each beneficiary as said Trustees shall deem judicious and necessary for the support and maintenance of my son and his wife, Clara B. * * * "
The remainder of the provisions of the trust relates to the disposition of the fund after the death of John G. McDowell (the testator’s sole heir-at-law and next of kin). Lastly, he appoints Boyd McDowell, Casper G. Decker and Jervis Lang-don as executors of bis will.
The first of the objections filed to the account of Boyd McDowell, together with Mr. McDowell’s answer thereto, raises the question whether these executors ever transferred to themselves as trustees the rest, residue and remainder of the estate of the deceased and administered it as such trustees, or whether they still are, and at all times have been, acting simply in the
At the outset, it is well to carefully consider the will to the end that we may be able to judge the intention of the testator in making it as he did. The first two sections thereof deal with acts confessedly to be performed by his executors only, but by the 3d section he gives the rest, residue and remainder of his property to the three persons therein named as trustees for certain uses and purposes; that is to say, after his executors had carried out his wishes, expressed in the first two' paragraphs of his will, then their duties as executors were at an end and as his trustees they were to take charge of what was left and administer the trust as his will directs. As was held, in substance, in the case of Olcott v. Baldwin (190 N. Y. 99), “ The intention of the testator to have the rest, residue and remainder held as a trust fund from a point of time subsequent to his death appears * * * from his separately stating the duties of the executors and of the trustees. * * * The trust fund could not be determined until the completion of the duties of the executors.” In other words, the duties of the executors and the duties of the trustees are distinct and the will contemplates a time when the duties of the executors shall cease and their duties as trustees shall commence.
This is a very different situation from the one that arises where a will names executors and directs them to hold certain
It has repeatedly been held that while an accounting as executors and a transfer of the trust fund to the trustees, pursuant to a decree of a court of competent jurisdiction, is the most satisfactory proof of the completion of their duties in the one capacity and the commencement of their duties in the other capacity, yet such" judicial decree is not the only means of proving that the transfer has actually been made. There must, however, exist convincing proof that the trust fund has been actually separated and set apart, that the same has been actually received by .the trustees, as such, acting jointly, and that they have actually entered upon the discharge of their duties. In other words, when persons claim to have been acting in one capacity rather than in another capacity or, as is the claim in this case made by executor Boyd McDowell, that they have been acting in both capacities concurrently, all that the court asks is proof sufficient and convincing that they have been so acting; that is to say, does a review of the course of conduct of the persons handling this estate establish that they have been acting as executors solely or as trustees solely from a time when they ceased to act as executors, or have they acted concurrently in both capacities? A careful examination of all the proofs and the evidence convinces one that they acted in one capacity, namely, that of executors- only. A resume of the facts will best illustrate the conclusion.
It appears that the three executors qualified as such. They verified and filed the inventory as executors, thereby certifying' that they had received the personal property of which the testator died seized and possessed and stated therein. They at once opened an account with the Second Rational Bank oi the city of Elmira, N. Y., in the name of the “ Estate of R. M.
The first voucher drawn by the executors was for payment of income to John G. McDowell 'on August 10, 1909, about a month after letters were issued. The second voucher was drawn on August 19, 1909, for the payment of income to Clara B. McDowell. The third voucher was drawn on August 27, 1909, for payment of income to Clara B. McDowell. These vouchers were drawn on the account in the Second National Bank by Boyd McDowell as executor and countersigned by one of the other executors as such. There is no claim that at this time the trust fund had been determined and set aside. At this time the specific legacies, debts and funeral expenses had not been paid, the inventory had not been completed and filed, so that these payments of income to John G. McDowell and his wife could not have been income on the trust fund, but simply amounted to the turning over of the interest on the securities left by the deceased. The executors continued to turn over to these beneficiaries the interest moneys from time to time until the commencement of this proceeding in precisely the same way that the first payments, just referred to, were made. It may further be stated that no other or different procedure was had or taken by the executors with reference to the administering of this estate from the very beginning to the time of filing their accounts. In the vouchers filed there is no receipt by the trustees for funds or securities turned over to them by the executors, nor is there any evidence anywhere of a separation
In the latter case the court said: “ The power of trustees over the subject matter of the trust, is equal and undivided. They cannot, like executors, act separately—all must join both in receipts and conveyances.”
In Schedule F, part 2, of the account filed by executor McDowell the heading appears as follows: “ Showing cash ad-vaneed to trustees for investment.” This cash, amounting to $3,635.43, seems to have been retained in the hands of the executors at the time this executor states that certain, securities were turned over to the trustees as the trust fund. The vouchers show that these funds were checked out of the bank on checks drawn by the executors for the purchase of bonds either wholly or in part payment thereof. The checks were not drawn to the trustees, but were drawn direct to the sellers of the bonds or to the bank to cover a draft drawn for the purchase price thereof. So that the executors in these instances, as well as in every other
Counsel for the executors rely on the decision in Matter of Kellogg (214 N. Y. 460) to support their contentions. In that case one of the trustees named in the will renounced and the other two entered upon their duties as trustees. Later, the trustee who had renounced tried to withdraw his renunciation. At page 465 the court says: “ It appears by the affidavit of said Kellogg that prior to the attempted withdrawal of said renunciation, the other trustees had entered upon their duties as trustees, had set apart for the several trusts securities of the estate
The court held that, “ It was then too late for the appellant to withdraw his refusal to serve as trustee.” Observe that the trustees had entered upon their duties. They had set apart one million dollars of securities. They had purchased a seventy-thousand dollar real estate mortgage and forty thousand dollars of the corporate stock of the city of Hew York in their joint names as trustees.
This is an entirely different situation from what we have in the case at bar. In this case, so far as any joint act of the trustees is concerned, riot a dollar’s worth of securities has been set apart by them as such. Hot only that, but such stocks as have been purchased have been taken in the name of Boyd McDowell as an individual, not as an executor, not as a trustee. The evidence and proofs fail to show that joint action by the' trustees with reference to the funds of the estate which the law requires, and as was done by the trustees in the Kellogg case. The testimony shows that in every instance where securities were purchased with the funds of the estate the three trustees did not act jointly. The purchase in every instance was made by executor Boyd McDowell alone, and it was only in those cases hvhere the trade required the payment of a difference and a a check had to be drawn that one only of his co-executors was asked to sign the check, and thus had an opportunity of acquiring knowledge as to the purchase of the securities.
There can be no dispute that the rule of law stated in the Kellogg casej at page 466: “ It is not the law, however, that trustees may not receive any part of the estate, consisting of personalty, until the executor has accounted and been directed to pay it over,”-is, and has been the settled law of the State; but the facts of the case at bar do not bring it within this hold
This is perfectly true, but before investing the money they must have the trust fund in their hands as trustees, which, is not ° the case here. The facts of this case do not bring the action of the executors 'here within the holding just quoted.
The conclucion therefore is, for the reasons hereinbefore stated, that the evidence and proofs do not establish the fact that the trust fund, provided for in the will, has been determined, separated and set apart by the executors and received by the trustees, but that all the funds of the estate remain in the hands of the executors who are still acting and accountable as such.
As to the second obj ection, that is, the taking of commissions by executor McDowell, while the amount of $1,800 taken by Mr. McDowell as his commissions exceeds the amount of commissions to which he would have been entitled at that time on an accounting, yet the executors had a rightt to retain in their hands sufficient funds to pay their commissions and the expenses of the accounting, and while on this accounting they should be required to account for the said 1,800 as still in their hands, théy should not be required to pay interest thereon for. the reason stated.
. As to the third objection, namely, certain traveling expenses taken by executor McDowell from the income of the estate — the will does not give the executors, as such, power or,authority to pay expenses from the income, and since they have already been held to have been-acting as executors solely, and it appearing from the evidence and proofs that the expenses were necessarily incurred in looking after the assets of the estate, this objection is disallowed. The payment, however, should be made
As to the fourth objection, namely, the payments to Grace Brown for clerical work — the general rule is well stated in Matter of Harbeck (81 Hun, 28): “ The general rule is that administrators, executors and' trustees are not only bound to assume the responsibilities and exercise the discretions of their "office, but must also perform within reasonable limits the actual manual labor requisite to the due execution of the trust. The fact that they are busy men and have not as much time to give to the management of. estates as other individuals, cannot be permitted to affect the legal rule, which must be applied and enforced whenever a question is presented touching the propriety or legality of the expenditure of the moneys of an estate.”
In other words, the test would seem to be the necessity for the services and the reasonableness of the disbursements. The testimony of executor McDowell on this matter is to the effect that there came a time when he could not afford to pay Miss Brown, who was the stenographer in his office, as much salary as he had theretofore been paying and that it was agreed between him and his co-executors that she would be paid $25 per month out of the funds of the estate. It nowhere' appears specifically what she did to earn this compensation. The amount of labor that she performed is not stated, So that it is impossible to determine whether the work was necessary and the pay reasonable. The most, it seems, that Miss Brown did was to write out such letters as were necessary to be written with reference to the estate. It does not appear that any books were kept, except the book in which interest receipts were set down. It also appears that after Miss Brown left the employ of Mr. McDowell, Mr. McDowell did the work for the estate himself, personally.
The conclusion, therefore, is that inasmuch as in an estate of this size each of the executors may receive full commissions,
As to the fifth objection, viz., the right of the executors to charge oif the note of John G. McDowell against the income — it appears that on September 25, 1907, John G. McDowell gave his note to Andrew Fitzsimmons; that on the same day Andrew Fitzsimmons gave his note to the testator; that the testator loaned to Andrew Fitzsimmons the amount of the note, viz., $2,500, with which to take up notes of John G. McDowell that had been indorsed by Fitzsimmons and were held by the Second Rational Bank. The Fitzsimmons note was inventoried by the appraisers at $1,300. Some time after the executors qualified, they exchanged notes with Mr. Fitzsimmons, receiving from him the note against John G. McDowell. It seems that this was done by the consent of John G. McDowell, the only difference being that John G. McDowell claims that he was to pay the note at the same amount that it was inventoried for by the appraisers, namely, $1,300. This part of the arrangement is denied by executor McDowell.
John G. McDowell, not having been given any specific bequest by the will of the testator, to be paid by him by the executors, there is no fund out of which the executors can take payment for this note. Even as trustees, were they acting as such, I doubt very much whether they would have a right to deduct it from his income. Certainly there is no authority for the surrogate to direct the payment of this note out of any income that may hereafter accrue, or may now be accrued, to the credit of John G. McDowell, for the reason that there is a dispute as to the amount to be paid by John G. McDowell. It seems that he consented that the executors might purchase this note with funds of the estate at $1,300.
My conclusion, therefore, is that it is the duty of the executors to proceed in another tribunal for the collection of this note,
The facts in the case of Rudd v. Rudd are very similar and I, therefore feel compelled to follow the decision therein rendered.
As to the sixth objection, viz., the purchase of securities by the executors — the will in this case does not give the executors authority to invest the funds of the estate. The general rule is that executors, as such, have no authority to invest the funds of an estate. It has already been held herein that these executors did not receive the funds as trustees and thus fdid not acquire the right to make investments, as provided in the will. But conceding, for the sake of argument merely, that they had been acting as trustees, it appears by the testimony that all these investments were made by Boyd McDowell acting alone. In cases where it was necessary that a check be drawn for the full or part payment of the purchase price of securities one of the other executors was asked by Mr. McDowell to countersign the check as executor, so that there was never any joint action on the part of all three executors in the purchase of securities. Even though the trust fund had been separated and set apart and vested in the trustees, and they had made the investments set forth in the account filed, each investment would necessarily have had to have been by their joint act. And if they had been made by the joint act of the trustees, yet, when gauged by the rules of law applicable to the investment of trust funds, there is grave d'oubt whether they are authorized under the power given in the will. When carefully and thoughtfully read and considered the will does not give the trustees a broad dis-creation in the matter of investments. It provides that “ they hold, manage, invest and reinvest all of said trust property as they shall deem wise and judicious and for the best interests of the beneficiaries named.” And later on, in the same paragraph,
In Matter of Hall (164 N. Y. 196, 199, 200), the court said: “ The range of so-called ‘ legal securities ’ for the investment of trust funds is so narrow in this State that a testator may well be disposed to grant to his executors or trustees greater liberty in placing the fund of the estate. But such a discretion in the absence of words in the will giving greater authority should not be held to authorize investment of the fund in new speculative or hazardous ventures. If the trustees had invested in the stock of a railroad, manufacturing, banking or even business corporation, which, by its successful conduct for a long period of time, had achieved a standing in commercial circles and! acquired the confidence of investors, their conduct would have been justified, although the investment proved unfortunate-But the distinction between such an investment and the one before us is very marked. Surely there is a man between a government bond and the stock of an Alaska gold mine, and the fact that a trustee is not limited to the one does not authorize him to invest in the other.”
It will be seen from the foregoing that the securities of concerns which by their successful conduct for a long period of time had achieved 'a standing in commercial circles and acquired the confidence of investors might be justified. Applying that rule to the purchase of some of the securities set forth in the account, as follows, such investments were not justified: $10,000 of Empire Lumber Company bonds; $11,000 Sacramento Valley Irrigation bonds; $16,000 Birminghan* Ensley and Bessemer Railroad Company bonds; $15,000
We now pass to the consideration of the matter of the contention of the executors to the effect that John G. McDowell is estopped to raise the objections he has herein. The rule as to estoppel seems to be well stated in the headnote to Adair v. Brimmer, 74 N. Y. 539, as follows: “ Also, held, that to establish a ratification by the cestui que trnst, in such a case, the ratification must not only be clearly ]^?Syed, but it must be shown that it was made with full knowledge of all the material facts, and also that the cestui que trust-was fully apprised of their effect and of his or her legal rights in the premises.”
An examination of the testimony and proofs herein shows that the contention of the executors falls far short of coming within this rule. John G. McDowell admits that he was consulted by executor Boyd McDowell as to the investment in the bonds of the city of Shawnee, Okla., but he denies that the said executor said anything to him about any of the other investments. However, the testimony of Boyd McDowell on the subject does not go far enough to satisfy the rule quoted from Adair v. Brimmer, supra.
The conclusion, therefore, is that the evidence does not establish the estoppel claimed by the executors.
My conclusion, therefore, is that the executors should be charged with the amount- of the personal property mentioned in the inventory and the increase thereon as shown in Schedule A of the account filed'; they should also be charged with all the income they have received; and they should, in addition thereto, be charged with income on the securities that have defaulted in payment of interest from the date of such default at four and one-quarter per centum per annum, being the average rate of income that was borne by the securities exchanged by them for those that have defaulted. They should be credited with the amounts that they have paid to John G. McDowell, Clara B. McDowell, Elizabeth R. Boyd, Riverside Cemetery Trustees, the expenses of the estate, as shown by Schedule C, except the item of $1,800 commissions, hereinbefore referred to; the debts paid, as shown by Schedule D; legacies paid, as shown by Schedule E, and the current expenses paid, as shown by Schedule H, except the charge therein for payments made to Grace Brown, which have been disallowed.
Let findings and final decree settling the accounts of the executors be prepared accordingly.
Decreed accordingly.