1 Hopk. Ch. 28 | New York Court of Chancery | 1823
The charges of the defendant Boyd, for his services as agent, were adjusted and allowed by his constituent, the defendant Benson. This settlement may protect Boyd, though it can not protect Benson, against the claims of the complainants; but as my opinion is founded on reasons independent of this settlement, I shall not discuss its effect.
It also seems unnecessary, to determine, whether Boyd was „, , .... an agent under the will, or not. If he was appointed in virtue of the special authority given in the will to appoint an agent, he is, by the terms of the will, entitled to such compensation hi® services, as the executors shall judge reasonable. If he was appointed in virtue of the general power, which every person has, to act by an agent, he is also entitled to a reasonable compensation for his services. In respect to Benson, the executor, he cannot charge the estate with the expense of an agency, unless the will gave an authority to that effect, or unless the circumstances of the case, rendered it proper that he should employ an agent. If he employed an agent without the authority of the will, he was responsible for the acts of his aSent 5 but if the intervention of an agent was proper and jus-» tifiable, for the benefit of the estate, the expenses of such an ’ ’ r agency, must be borne by the estate. 1 he appointment of an agent in this case, was entirely proper. The incumbered and perplexed situation of this great estate, rendered it fit and indeed necessary, that the executor should act by others, to a great extent; and all reasonable disbursements to an agent
Boyd is entitled to a just compensation; and that compensation must be measured by the nature extent and value of his services. No sum or principle of compensation was stipulated by contract; and the case is not governed by any legal rate of allowance. The amount of compensation must be assessed by good discretion, in regard to all the circumstances of the case.
The commissions allowed to Boyd, are the chief subject of objection to his account. These commissions are charged and allowed, not merely as a compensation for receiving and paying money, but as compensation for his services as the agent of the executor, in conducting the affairs of the estate, and for selling parcels of the estate. Commissions are here stated and allowed, as a measure of estimating the reward due to all the services of the agent. The real extent of his services does not clearly appear; but from the facts which appear and the nature of the case, those services must have given much employment to the agent, and must have been very beneficial to the estate. The time and labor actually employed by the agent, in these services was necessarily considerable; in many of these transactions, his responsibility was not small; in many of them his professional knowledge must have been very useful ; and in all, his trust was performed with acknowledged fidelity. The compensation charged by the agent and allowed by the executor and the master, presents nothing exorbitant; every thing has been done in good faith, by both Benson and Boyd; the estate has had much benefit from these services ; and upon the whole case, I do not perceive that these allowances are unreasonable or unjust.
I therefore concur with the master, in respect to these allowances ; and consequently, the second, third and fourth exceptions to his report, are disallowed.
The master has allowed to the defendant Benson, one
Before the act of the fifteenth of April 1817, an executor Was not entitled to any compensation for his services, in the discharge of his trust. By that statute, it is enacted, that it shall be lawful for the court of chancery, in the settlement of the accounts of guardians, executors- and administrators, on petition or otherwise, to make a reasonable allowance to them for their services as such guardians executors and administrators, over and above their expenses; and 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.
By a rule of this court, of the sixteenth of October 1817, was ordered, that the allowance settled by the chancellor, as . . - .. .... a compensation tor guardians executors and administrators, the settlement of "their accounts, under the act of the legislature, for receiving and paying „ money, shall be five per centum, on all sums not exceeding one thousand dollars, for receiving and paying out the same ; two and a half per centum, on any excess between one and five thousand dollars, and one per centum for all above five thousand dollars. No other regulation upon this subject, has been made by this court.
It is only under this statute, that an executor can claim any reward for his services; and the true meaning of this new. law, must be ascertained.
The statute consists of two principal clauses. The first, authorises this court to make a reasonable allowance to guardians executors and administrators, for their services. These terms are clear; and they regulate the compensation in no other manner, than to require, that it shall be reasonable. If this principle alone, had been the object of the law, the provision was complete, in the first clause ; nothing more was necessary, and nothing more would have been enacted. Every
But the last clause of the statute, provides, that when the rate of such allowance, shall have been settled by the chancellor, it shall be conformed to in all cases. These terms are fully coextensive with the preceding provision. “ Such allowance,” plainly comprehends the reasonable allowance, and every allowance mentioned in the first clause. The term “ rate,” is certain, in its sense; the term “ settled,” conveys precisely and strongly, the idea of a rule; and the words, “ the rate of such allowance when settled,” taken together, show clearly, that a fixed rule was the object of the law. The application and extent intended to be given to such a rule, are clearly shown by the concluding words of the clause, which declare, that the rate of such allowance when settled, “ shall be conformed to in all cases and the cases here intended, are evidently, all the cases, in which by the preceding provision, any allowance is to be made. According to the sense of all these terms, the second clause of the statute, embraces all the cases mentioned in the preceding provision.
The statute theiefore, gives power to this court, to make . 1 allowances by settling rates, a power to establish rates and to allow according to such rates; and it does not authorise the court to make special allowances, without regard to rule or rate.
This construction is denied. It is said, that the statute not only authorises the court to establish rates of allowance, but also to make allowances without a rate; that so far as rates are established, they must govern, and that all services for which rates are not provided, must be rewarded by special allowances. This interpretation may be specious, but in my opinion, it is not the true sense of the law.
To give to this court power to act upon the same subject, by rule and without rule, power to allow to the same executor, a párt.ofhis compensation, according to a fixed rate, and another part, according to a discretionary valuation of his services, would be at least, a singular provision. The advantages of a fixed rate of allowance, are obvious. Such a rate has the ef
This effect is exemplified in the present case. The defendant Benson has charged and the master has allowed, a gross sum for all the services of Benson as executor, in lieu of the allowance made by the rule of the court, under the statute. The services of this executor, like those of other executors, consisted partly, in receipts and payments of money, and partly, in other acts. If the allowance for receiving and paying money, and the allowance for other services, had been given in separate statements, the aggregate of the two statements, would I presume, have been the total sum which the master has allowed. The rate of allowance, established by the rule of the court, thus becomes almost useless, if the executor may claim compensation, without regard to that rate; and it is equally so, whether his compensation is stated to be, as in this ease, for all his services, and instead of that allowed by the rule, or is stated partly under the rule, and partly by some other mode of estimation.
The provision that the rate of allowance settled by the chancellor, shall be conformed to, in all cases of the settlement of such accounts, is a clear explanation of the meaning of the whole law. The legislature here, evidently mean, not to litigation, but to prevent it. They mean, that the settled rate of allowance, shall be a rule, which shall pren n0f; 0nlv in the court of chancery, but also before surrogates and in all other courts, in which such accounts may ® * be settled; and above all, they mean, that the rate of allow-
If these plain provisions and these views of their meaning, do not determine the true sense of this law, farther illustration may be found, in more general views, in the nature of the subject, and in the operation of different plans proposed for making these compensations.
When it is proposed, that all services of guardians executors and administrators, shall be compensated by one uniform rule, the objection made to this method, is, that it does not provide equitably, for different cases, and does not reach the exact justice of each case. This objection is ánswered by the statute itself, which does not promise or propose to attain the exact justice of each case; but proposes only, so much justice, as may be attained by a rate of compensation. But let the project of special rewards by a discretionary assessment in each case, be considered, without reference to the statute. What is to be assessed ? The value of the services of an executor administrator or guardian. The intrinsic or moral merit of such services, depends on an endless variety of circumstances, and also greatly, on opinion. The real labor of the trust. is not easily ascertained; and when it is ascertained, is not easily valued. But in general, the personal labor of these trustees, is not great. In general, vigilance and fidelity are the most important requisites, in these trusts. Sometimes, high talents and great zeal may be exerted, in the service of an estate or a ward. A guardian may be a parent to his ward, in education, in kindness, in salutary counsel and moral control; or while these duties are partially discharged or wholly neglected, he may preserve the property of his ward, with entire fidelity. Each guardian, each executor and each administrator, discharges his trust, with more or less assiduity activity and exertion on his own part, and with more or less benefit to those, whose interests are committed to his charge. In any of these cases, how is the reasonable compensation to be ascertained ? Is the trustee to be paid for his services, with
To avoid the objections made to a uniform rule, it has been proposed, to establish several rates of compensation for different classes of service. The services of guardians executors and administrators, are various ; and it would be very difficult, if not impossible, to classify all these services, into kinds or divisions,, with any precision: If these: services were distinguished into several kinds, the adjustment of a reasonable rate for each kind of service, would be a matter of great difficulty; and the general effects of many different rates, would be, .to perplex the subject of compensation, with questions concerning the nature of the services performed, and to produce in most cases, an amount of compensation, not more equitable, than one which might be derived from a single rate of allowance for the whole. The project of several rates of compensation, is also inconsistent with the statute itself; which authorises an ’allowance and a rate of allowance for services, in terms sufficiently showing that the legislature did not regard the subject of services, as divisible into portions, or susceptible of distinct rates of allowance. .....
It has also been proposed, to make the compensation depend upon time, by malting an allowance for each day, employed' in the business of the trust. This would indeed be a universal rule, embracing all services ; but the principle would be most pernicious. No rule could bemore dangerous, than that which should declare, that every guardian executor and administrator shall receive a daily allowance for time employed in his trust. Much of the utility of these trusts, always consists in attention, superintendence, fidelity and, economy; and cares and services like these, cannot be measured with any: exactness, by days or months. The duties of these trusts, do not in general, require entire days of attention; but they are usually, performed, as occasion may. require,, with little or no; interruption of the private pursuits of the trustee. The iniu=tice, pf allowing daily wages; the temptation to abuse which would tie offered by such a rule; and the difficulty of preventing
Dismissing all schemes which are inconsistent with this law, and all others which if authorised under the power given to this court, are futile, impracticable or unjust, we must find, what the statute authorises and requires, a reasonable principle of compensation for these services. Such a principle, to execute the intention of the law, must be one rate for all the services of all guardians executors and administrators ; a uniform rule for all cases, without distinction between the different trusts' or different services of an executor an administrator or a guardian.
These cases are susceptible of such a rule. The amount of property, confided to an executor administrator or guardian, and passing through his hands, is a basis, upon which his reward may be easily computed. The custody and care of the estate, are his duty; and his services in general, bear a just proportion to the amount of the estate. Though the value of his services, may not be in exact proportion to die value of the estate, yet in the general course of these affairs, the amount of the estate, indicates with sufficient exactness, the extent of his labors, cares and services, and their reasonable value. Thus, a plain rule of calculation, is afforded by the amount of the property held in trust; a rule which is comprehensiye as well as simple; and which in all ordinary cases, is a very just criterion of the reasonable value of the services of the trustee. This rule is recommended by its absolute certainty, its intrinsic propriety, its adoption in other states in which compensation is allowed to these trustees, its analogy to compensations made to other trustees and agents who have the care of property, and by the justice which it will generally afford to an executor administrator or guardian; Whatever may be the weight of objections made to this prinpie, all other plans of compensation are exposed to far great
The trusts of an executor administrator and guardian, differ widely from all other trusts and all other agencies. They are trusts for the dead ; and they are also trusts for the living who are incompetent to act for themselves, or to watch over their own rights. Each one of these trustees, has great powers and great latitude of discretion. He determines what shall be done; and he performs the service, without direction from any constituent, and without the control and vigilance, which other principals hold over other agents. It is required by the most obvious policy, that these trusts should never become lucrative occupations. A reasonable compensation governed by a fixed rule, may be demanded by justice, and seems to be the precise object of this law. But that every executor administrator and guardian should be rewarded from the estate in his hands, for all his services whatever they may be; and that his reward should be determined by the principles which would prevail between an ordinary factor and his constituent, would be a most pernicious doctrine. If such a doctrine were law, then would these trusts become occupations inviting for gain, and mischiefs the most serious would ensue. There is no reason to believe, that the legislature intended to adopt such a principle. If justice demands something, policy forbids much: and the safe as well as the obvious construction of this law, is, that so far as reasonable compensation can be made by a fixed rule, so far only, it shall be allowed. These trusts are always voluntarily assumed; and no executor administrator or guardian can complain, that his compensation is inadequate, when he may accept the trust or not, in his own pleasure, when he knows that his reward is limited, and when policy and morality forbid, that he should derive profit from such an employment.
All proper expenses are always allowed to executors administrators and guardians. When they act by others, for proper objeets and in good faith, the compensations of agency and
The principle which best 'reconciles policy with justice, and both with the provisions of this law, accordingly is, that the compensation for all the services, of these trustees, shall be measured by the payments of the trustee, ascertained at the close of his trust. By this principle, the rewards of the trustee, depend upon his payments. So far as the trustee may feel the desire of gain, this principle is an incentive to fidelity, prómpting him, not only to collect and preserve the estate, but also to apply it faithfully, and to persevere in his duty, even to the last act. It is only when the accounts of an executor administrator or guardian, are settled, that he can claim any compensation. Then, the whole trust ceases ; and if the trustee has faithfully paid or is ready to pay, all the moneys which he has received, his fidelity and the measure of his reward, then appear. With great reason therefore, the statute provides that the rate of allowance, shall prevail and the allowance itself be made, in the settlement of such accounts.
The allowance settled by the late chancellor, has been represented, as providing compensation for the receipt and payment of money, and for no other service; and it is then said, that as the power of the court to make an allowance for other services, is unexecuted, such an allowance must now be made. The court has no power to make an allowance, without regard to a rate. It is empowered to act upon this subject, on petition or otherwise; and the statute might be executed either by an order in a particular case, or by a general order establishing a rate. If no rate were settled, the court might act in a particular case, by an order making an allowance, according to some rate which should be adopted; and the effect
The existing rule, interpreted with literal strictness, provides compensation for no service, excepting the receipt and payment of money; but this is neither the spirit nor the effect of the regulation. The plan of the statute, is compensation by a rate; and some principle of proportion, must accordingly, be found. The rule provides compensation for all the services of an executor administrator or guardian, by an allowance bearing proportion to the moneys which he has received and paid. The moneys received and paid, are made the basis of a calculation, to ascertain the value of all his services; and the result obtained by this calculation, is the reward, not only for receiving and paying money, but also for all other servíces in the trust. It is one reward for all services ; and it is ascertained by a computation, founded on one species of service, which is described, not to reward that alone, but , . , J to give the principle of calculation. The principle of prop ortion which constitutes a rate, is found in one species of service; but the rate itself is, as by the statute it must be, a rate allowance for all services. The service selected as the basis
I inquire not here, whether the rate of allowance which has been settled, is or is not, the rate best adapted to produce a just amount of compensation to guardians executors and administrators; either for receipts and payments of money, or for all their services. This rate may be too high or too low; or it may be a reasonable rate for receiving and paying money, and insufficient to afford compensation for other services; or it may be sufficient for all services. The rate intended by the statute, should be such as to produce, in its general operation, a reasonable amount of compensation to guardians executors and administrators, as an average .for their services. Whether the existing rate is regarded, as a provision for all services, or as providing only for the receipt and payment of money; in either view, while this rate and no other, is in force, this operates, as the only provision for all services. The adjustment of a reasonable rate is a subject not before me. The question here, is, whether any allowance can be made, without regard to a rate. My purpose has been, to investigate the true sense of the statute; and I hold, that this law does not authorise any allowance to guardians executors or administrators, in ’ the settlement of their accounts, otherwise than in conformity to an established rate.
In this case, the master having allowed for the services of the executor, a gross sum, not ascertained by any rate of allowanee, the first exception to the report, is allowed ; and it is now referred to the master, to state an account of the pensation to be allowed to Benson, by comnutino- the allow- , , . , r n anee upon the moneys received and paid by him as executor, according to the existing rule.