5 Dem. Sur. 194 | N.Y. Sur. Ct. | 1887
In his findings respecting the
There are three classes of cases to which the referee has found this statute applicable: (1) cases in which rents became due before Mr. Weeks died and were collected by him in his lifetime; (2) cases in which rents fell due in his lifetime and ' were collected by his executors after his death; (3) cases in which rents fell due after he died and have been since collected by his executors.
It is claimed by counsel for some of the contestants that the act of 1875 has no application to any of
Vice Chancellor Wigram, in Browne v. Amyot (3 Hare, 173 [1844]), declared that the common law doctrine under which the profits and income incidental to the beneficial enjoyment of real estate followed the title to the premises (so that rents falling due before a testator’s death would go to his personal representative, and rents falling due after his death would go to his heir or devisee) had not been affected by the then recent statute of 4th and 5th William IV. It was held that the term “ person interested in any such rents,” when taken in connection with the context, meant a person whose legal interest would determine or, in other words, cease and become extinguished, either upon his own death or upon the
The decision in Browne v. Amyot was followed in 1852 by Maule, J., in Beer v. Beer (12 Com. B., 60, 77), and in 1857 by Vice Chancellor Wood, in Clulow’s Estate (3 Kay & J., 689). The construction to which the English courts seem to have uniformly adhered while the apportionment act of 4th and 5th William IV was in force seems to be much more reasonable than that which commended itself to Westbrook, J., in Matter of Eddy (10 Abb. N. C., 386). I feel constrained to adopt it, and all the-more because the act of 1875 is thus brought into harmony with the provisions of section 6, tit. 3, ch. 6, part 2 of the Revised Statutes (3 Banks,. 7th ed., 2295). That section declares that there shall be included among the property of a decedent’s estate which shall be deemed assets, and shall pass as such to his executors and administrators as part of the personalty, “ rents reserved to the deceased which had accrued” (i. e., become due) “at the time of his death.”
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At the time Mr. Weeks made his will, and at the
In place of that provision, there has since been substituted § 2737 of the Code of Civil Procedure, which declares that “ where the will provides a specific compensation to an executor, he is not entitled to any allowance for his services, unless by a written instrument filed with the Surrogate he renounces the specific compensation.” It can scarcely be claimed that this change in phraseology was designed to effect any change in the policy of the statute. The “ specific compensation ” is still in’ the nature of a “ legacy.” No time is fixed by lawr within which an executor must choose between his statutory commissions and his testamentary bequest, and I see no reason to doubt that so long as he has not indicated his election, either by taking to himself one or the other, or by some other mode, his right to file a renunciation and to avail himself of its benefits remains unimpaired. Now, executor Weeks lately undertook to exercise that right, not having theretofore demanded or received any rewTard for his services and not having in any manner indicated his acceptance of the specific compensation. The referee has found that this renunciation is ineffective because it was not seasonably filed with the Surrogate. In "this view I cannot concur. Nor do I deem myself authorized to permit Mr. Weeks to retract his renunciation, as he now offers to do, unless perhaps such retraction shall be consented to by all the parties to this accounting. Executor Weeks will therefore be allowed by decree herein his appropriate share of the statutory commissions upon the personal assets accounted for.
On the other hand, if it be assumed that the disputed provision is valid, no award of compensation can be made upon the facts before me. I have already declared that in my opinion the bequest is intended as a reward for services respecting both real and personal estate. These accounts do not show the amount of the rents, nor do they show how much time and labor have been devoted to the management
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Except in the particulars that I have indicated, the referee’s report is confirmed.”
In November, 1886, the following opinion was filed in the same matter:
In accordance with the decision of the General Term of the Supreme court in Weeks v. Cornwell (reported, in part, in 39 Hun, 643), I modify my decision of May 14th, 1886, wherein it was declared that persons other than those cited to attend these proceedings should be brought in as parties, before certain questions touching the compensation of the executors could be determined by the Surrogate. All who are interested in the determination of that question being now before the court, it becomes necessary to pass upon the validity and construction of that portion of the 32d article of the
“ I nominate and appoint my wife, Catharine Weeks executrix, my adopted son, Jacob Weeks Cornwell, my nephew, Samuel Weeks, Jr., and. George Washington Weeks executors of this my last will and testament, and I hereby give to them each, or to such of them as may serve, the sum of $1,200 annually, in lieu of all commissions or compensation allowed by law.”
It is insisted in behalf of some of the parties to this proceeding that the provision just quoted should either be treated as wholly invalid because of the impractibility of enforcing it, or should be construed as relating simply to the administration of the personal property by the executors, as such, and as having no application to their dealings with the real estate. The latter alternative cannot, it seems to me, be entertained for a moment. There are numerous and irrefragable reasons why the disputed provision, if it is held to mean anything at all, must be regarded as establishing the measure of the compensation which the persons selected by the testator to effectuate his testamentary purposes should annually receive for their entire services in that regard.
This interpretation is plainly written on the face of the will; and, besides, if it is proper, as I think it is, to consider, in deciding the question, under discussion, the character of the testator’s estate at the time the will was made and executed, and at all times thereafter until his death, it is preposterous to suppose that
As was suggested in the memorandum of May 14th, the will does not from its beginning to its end make use in a single instance of the word “ trustee.” It is for “ executors ” alone that it provides compensation, and it is only upon executors that it imposes any duties or responsibilities. By seventeen distinct provisions certain parcels of real estate are devised to the executors, upon trust to collect the rents, profits and income thereof and to pay the same to a specified beneficiary during his life, after proper deductions for taxes, assessments, insurance and repairs. In every instance the properties so devised are to go upon the death of the beneficiaries to a specified remainderman. If I am correct in holding that the testator’s bequest of $1,200 annual salary to his executors was intended in part as compensation for the management of these trusts, then, unless such bequest is for some cause invalid and ineffectual, the burden of paying the salaries of the executors must somehow fall upon the cestuis que trustent for life of the real estate devised.
How can any reasonable scheme be established for carrying into effect the testator’s purposes ? Is the will definite and certain enough in this regard to warrant a court in declaring that this or that suggested mode of apportionment is warranted by its terms ? These are questions that demand an answer, despite the fact that the executors are here accounting for
It is not necessary to discuss in detail the difficulties which stand in the way of practically enforcing this provision. Many of these have been pointed out by counsel. Who can say, in the absence of any direction by the testator, how he intended that the salary charges should be apportioned ? Shall the apportionment be made, for example, in the ratio of the gross income of the several beneficiaries, or in the ratio of their net income, or in the ratio of the value of the services required in the management of the several trusts ? Suppose that a conclusion is reached upon this point, and suppose it to be determined that the salary expense must be borne by the cestuis que trustent in the ratio of their gross income, and suppose the executors to have in hand at a given time
One effect of the foregoing decision is to make the tripartite agreement ineffective for .the purposes of this proceeding. That agreement does not pretend to make any assignment or transfer except of the $1,200 salary given to the executors by the will. The decree will award to the accounting parties such portion of the statutory commissions as they may show themselves entitled to receive. Any expense that may attend a controversy in this regard must be de
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The following are extracts from the opinion filed in February, 1887, upon settlement of the decree:
The decree proposed by the attorneys of executor, Weeks, is in substantial conformity with my decisions of May 14th, 1886, and November 3rd, 1886. Certain of the amendments proposed by executor Cornwell’s attorneys should, however, be allowed.
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The provisions suggested by Mr. Candler, respecting the payments of commissions, costs, etc., may be substituted for the provisions suggested by Mr. Man, and for this reason. The testator left real estate of great value, and an insignificant amount of personal property. Nearly all of the latter was specificalty bequeathed to his widow, and it has been decided by the Supreme court, that her title is absolute, and that resort must be had to the real estate to satisfy the claims of creditors, before the personal property bequeathed to the widow can be used for that purpose.
Before this decision was announced, the executors had applied a portion of the personal property to the payment of debts, and there ar'e now in their hands no funds wherewith to pay the expenses of this accounting. A large portion of the real estate is specifically devised, some of it in fee and some of it in trust. By the 24th article of his will
The trust attempted to be created in the 24th article has been pronounced void by the Supreme court, but it by no means follows that that article may not be so far effective as to impress upon the property devised by article 25th, the character of a residuary fund. If it has that effect, any changes which, by reason of a deficiency of personal assets, may fall upon the real estate, must fall upon this particular portion of the real estate, rather than upon any portion specifically devised. If, on the other hand, it should be decided that the burden imposed upon the real estate by the Supreme court decision must fall entirely upon the income of the several trust estates, it is manifestly impossible to direct the application of any definite sum from the income of any particular trust without a full account of the receipts of all the trusts as well those that have fallen in, as those that are still existing;.
After careful consideration of the matter under discussion, I am convinced that in the decree to be entered herein no direction can properly be given as to the fund from which shall be paid the commissions and costs of this accounting, except a direction that the executors shall pay the same out of that part of
On April 9th, .1883, executor Weeks filed a petition for the judicial settlement of his account, alleging therein that his co-executor had refused to unite with him in the proceeding. On July 10th, 1883, the re-, turn day of the citation, executor Cornwell filed an answer to the Weeks petition, in which he set forth the reasons for this refusal. The proceeding was adjourned to September 11th, 1883. On September 8th 1883, executor Cornwell filed his petition for a separate accounting and took out citations returnable on October 25th, 1883. On October 4th, 1883, executor Weeks filed his account together with a reply to Corn-well’s answer, alleging that that answer furnished no adequate excuse for the course of action which it undertook to defend.
On October 25th, 1883, the return day of the citation on executor Cornwell’s petition, Weeks filed an answer thereto praying that the proceeding be dismissed upon the ground that the estate should be spared the expense of two accountings. On January 18th, 1884, executor Cornwell filed his separate account. It does not appear that the Surrogate was asked to pass upon the issues raised by the petitions and answers above specified until after the coming in of the referee’s report. The referee found that there was such a difference of opinion between the executors, as, in his judgment, justified them in accounting separately. In my memorandum of May 14tb, 1888, I stated that this portion of the referee’s report, to which some of the parties had excepted, was only im
These several applications are formally presented in both the accounting proceedings. Although the two accoxmts were filed pursuant to separate petitions and citations, there has practically been but one litigation. Before executor Cornwell’s account was presented, objections had been interposed to the account of executor Weeks by the several parties in interest, including Mr. Cornwell himself, and including also Mr. Cornwell in his capacity as executor of Catherine Weeks, in whose will he was named as residuary legatee.
The issues of the Weeks accoxxnting were submitted to the refex-ee on December 29th, 1883, and to the same referee were submitted on November 17th, 1884, the issues of the Cornwell accoxxnting. Although, in certain formal respects, the earlier pi'oceeding and the later were kept distinct, nearly all the testimony taken in the one was by common consent admitted in the other. The cases were summed up together, and although in each of them the referee filed a separate report, the two reports covered substantially the same ground and were accompanied by a single opinion in which the referee gave his reasons for the conclusions which the report exnbodied.
In computing the per diem allowance, regard may be had to the total number of days actually occupied, whether in the one accounting or in the other. It appears that the number of days so occupied in the taking of testimony and in the summing up before the referee was twenty-four. On three occasions, questions relating to these accountings have been discussed before the Surrogate. The parties to whom costs may be awarded under § 2561 of the Code of Civil Procedure will therefore be allowed as for twenty-seven, less two, or twenty-five days.
Section 2562 authorizes an additional allowance to an accounting executor for the time necessarily employed in preparing his account and in preparing for trial. This allowance for preparing for trial cannot lawfully be made to any party except a party accounting, and can properly be made to such a party only so far as the labor of preparation is demanded by the best interests of the estate.
The account of executor Weeks who was engaged far more actively than his associate in the management of this estate, was on the files of the court for more than three months before that of Cornwell was . presented. The Weeks account was not claimed by executor Cornwell to be incomplete or incorrect, except as regards certain variances between himself and his co-executor which might have been satisfactorily indicated upon its face.
The Cornwell account is in almost all respects a literal copy of the Weeks account, and its transcription cannot have been a laborious or protracted task. I have said that the allowance for preparation for trial, sanctioned by § 2562, can be claimed by the accounting party only, and in his capacity as representative of the estate. It must often happen that such a representative has a personal interest in the estate as legatee or creditor; it is manifestly not the policy of the law to give such a person, merely because of his official relation to the estate, an advantage, in respect to allowance of costs, over other legatees or creditors, in a proceeding brought by himself for the protection of his individual as distinct from his representative interests.
Now the order of reference in the Cornwell accounting was not entered until November 7th, 1884; and the trial did not commence until December 26th. The great bulk of all the testimony submitted to the referee had been taken upon the hearing in the other
The decree may make provisions for costs and coun-
sel fees as follows:
To executor Weeks
Costs . . . . . . . . $ 70
25 days at trial ..... 250
158 days preparing account and preparing for trial ....... 1,580
Total ....... $1,900
And disbursements.
To executor Cornwell.
Costs . . . . . . . $ 70
25 days at trial..... 250
40 days preparing account and preparing for trial 400
Total ....... $720
And disbursements.
To James W. and Martha Trask,
Costs . . . . . . . . $ 70
21 days at trial ...... 210
Total . . . . . . ' . $280
And disbursements.
To Henry A. Weeks
Costs . . .« . . . . $ 70
25 days at trial . . . ' . . . 250
Total . . . ■ . ... $320
And disbursements.
And a like allowance to Mr. Blauvelt, and to the parties respectively represented by Mr. Thomas, Mr. Matthews and Mr. Fixman.
See Weeks v. Cornwell (104 N. Y., 325).