Little v. Little

| Mass. | Mar 28, 1894

Barker, J.

The appellees were named by the will executors and trustees, and until they were appointed as trustees by the Probate Court it was their duty as executors to administer the estate in accordance with law and the will of the testator. They are found to have acted with care and prudence, and the questions argued relate to their charges and expenses of administration, and to the question whether certain of their expenditures should be borne by the capital or the income of the estate.

1. The executors charged a commission upon the proceeds of a sale of a house and lot, and the appellants contend that the executors are not entitled to compensation for the sale of real estate. But the question does not arise, because the commission charged upon the sale was, with other commissions, disallowed in the Probate Court, and a lump sum was allowed to the executors for their services, which allowance was affirmed by the single justice of this court. No reason is shown why the sum so allowed was not a fair and reasonable compensation for the services in respect of which it was allowed.

2. The estate was comparatively a large one, composed of real and personal property in amounts nearly equal. The debts were inconsiderable, and the scheme of the will contemplated the keeping of substantially the whole principal in the hands of the appellees for a long period, although the income would be distributed quarterly. One of the appellees had the full management of the estate for some years in the testator’s lifetime, as his agent under salary. The will provided that he should continue to have the charge and management of the property, and should continue to receive for such services compensation, independent of the trustees’ commissions, at the same rate as his former salary. After the probate of the will, an agreement by which this salary was reduced was made by all parties, including the appellants. They now contend that the payments of compensation on this account should be disallowed, because not justified by the will before the trustees were appointed by the Probate Court. But it is evident that it was the intention both of the testator and of the parties to the agreement that there should be no interruption in the services to be rendered, and the decree of the Probate Court and of the single justice of this court allowing the charges for this compensation was right.

8. Some portions of the real estate were, at the death of the testator, out of repair, and so situated and of such character that good management required large expenditures upon them in the nátur'e partly of permanent improvements and partly of repairs, by the making of which they were adapted for new uses, and were then leased. So far as the expense of these changes was defrayed with the capital of the estate, the appellants contend that the expenditures ought not to be allowed, because the appellees had not then been appointed trustees by the court. But the expenditures have been found to be wise and judicious, and it is plain from the fact's stated that they were necessary, and to the advantage of the estate. The samé persons were named by the will as executors arid trustees, ánd all the property, real and personal, was devised to thfem, and the responsibility of manageinent was upon them from the time of the probate of the will, by whatever official name they may have been designated. Without objection from any oiré, they qualified in the first instance as executors only, and they proceeded in the management of the estate as á whole, without objection or protest, distributing the income from time to tiriie ainong the beneficiaries. Although it would have been more regular for them to have qualified as trustees, they were the persons to whom the property in their charge both real and personal was given by the" will, and who had a right ás trustees to make the expenditures. The objection urged is purely a technical one, and is fully answered by the fact that since they became trustees they have in that capacity adoptéd ánd ratified their' acts as executors in the management of the real estate. Under the circumstances of o this case, we are of opinion that the items of expenditures were properly included in their accounts as executors. See Hull v. Cushing, 9 Pick. 395 ; Newcomb v. Williams, 9 Met. 525, 534; Miller v. Congdon, 14 Gray, 114, 115.

4. The appellants contend that none of the expenses upon the real estate should be charged to" income. But 'this is a question of detail, iri the treatment of which no' error not corrected by the Probate Court is showri, ánd the matter seems, after a very minute arid careful investigation, to have been correctly déált with in the accounts as allowed. The ruling that such of the work as was repairs was chargeable to iricome is plainly correct, and the apportionment by the Probate Court of the expense between capital and income was, in our opinion, right.

5. The contention that the appellees and those beneficiaries who acquiesced in the allowance of the accounts as rendered should not have the benefit of the correction of the error in charging certain expenditures to income is untenable. The error was not one of administration, but of accounting. No harm finally resulted from it to the appellants, and to allow their contention would be to give them a benefit from the error which has been corrected upon their request, as well as from its correction, and to inflict without reason a forfeiture upon others.

Decree affirming the decree of the Probate Court affirmed.