93 N.Y.S. 659 | N.Y. App. Div. | 1905
At the trial, upon .the complaint and the opening of plaintiff’s counsel, the complaint was dismissed and plaintiff excepted. The appeal challenges the correctness of this ruling, and in determining the question the facts alleged in the complaint and stated in the opening must be assumed to be true, as well as every inference that can fairly be drawn from them. (Sheridan v. Jackson, 72 N. Y. 170; Clews v. N. Y. Nat. Banking Assn., 105 id: 398; Scott v. Mayor, 27 App. Div. 240.) The facts thus alleged and stated are, in sub
“Memorandum of Agreement made the thirtieth day of October, One thousand eight hundred and ninety-nine, Between James Henry Smith of .The Reform Club Pall Mall London Esquire and George Alexander -Cooper of Elgin Scotland Esquire of -the one part, and Benjamin Hettleton Oakeshott.of West Yiew Richmond Road Kingston on Thames in the County .of Surrey Gentleman of the other part, Whereby it is mutually agreed as follows:
■‘1. The said Benj'amin Hettleton Oakeshott shall forthwith renounce all-his right and title to the probate both in England and the United States of America of the Will and Codicils' of the late
“ 2. The said Benjamin Rettleton Oakeshott shall serve and be employed for at least two years from the date hereof by the said James Henry Smith and George Alexander Cooper (whether both or either of them the said James Henry Smith and. George Alexander Cooper shall so- long live or not) at a salary of Five Hundred pounds a year payable monthly and to commence from the date hereof and all out of pocket expenses to do personally such secret tarial and accountants work in London or elsewhere as he shall be required by them to do.
“3. In spite of such renunciation and retirement as aforesaid the said Benjamin Wettleton Oakeshott shall be entitled to share equally with the other Executors appointed by the said Will and Codicils in all such commission and remuneration as the acting Executors shall be legally entitled to claim and be paid as such acting Executors, of which share the said J. H. Smith and G. A. Cooper shall pay to the sd. B.' LT. Oakeshott accordingly.
“ J. The parties hereto shall execute, sign and do all such deeds; documents and things a,s Mr. Joseph C. Priestly shall decide are necessary for the carrying out of and giving effect to this, agreement and shall himself settle.
“ As witness the hands of the parties the day and year first above written. ‘
'JAS. II. SMITH. '
“ GEORGE A. COOPER.”
The plaintiff thereupon renounced all right to the probate of said will and retired from the trusts thereof and in all respects performed said agreement upon his part; that said will was not probated in the State of Hew York, but was admitted to probate in England and letters testamentary issued to the defendants, by virtue of which they obtained possession of the testator’s property located in this State; that plaintiff has demanded that the defendants perform the agreement upon their part as to the commissions referred to therein (no claim being made but what they have done so as to the salary and expenses), which has been refused; that he
. Upon the foregoing facts we are of the opinion' that the complaint was properly dismissed. The action is at law and plaintiff, predicates his right to- recover upon the agreement} the provision of which is that he “shall be entitled -to share, equally with the other Executors appointed • * * * in all such commission and remuneration as the acting Executors- shall'be legally entitled to claim and be paid as such.” Defendants are. not entitled to commissions in England, and they never _,have become legally entitled to claim- or be paid the same in the State of Hew York: In this State an executor does not1 become entitled to claim or be paid 'commissions until the will has been proved, letters testamentary issued, and his account has been presented to arid passed upon by the surrogate. The provision of the statute with'.relation to commissions of an-executor is section 2730 of the Code of CiviLProcedure, which'provides that “on the settlement of. the account of an executor or administrator the surrogate must allow to him for his services, and, if there be more than one, apportion among them,, according to the services rendered by them respectively,” the commissions therein specified. The right to commissions depends upon the rendition of . the service and the settlement of the account. Until those two things have taken place commissions have not been earned, and an executor is not legally, entitled to' them. (Matter of Worthington, 141 N. Y. 9.) Here the defendants, according to the allegations of' the complaint and the facts stated in the opening, have never presented the will for probate in this State, and. by reason thereof have never become entitled to letters testamentary and could not render an- account of their acts as executors. Therefore, they never have ' become entitled, under, the laws of this State, to claim ór be paid any fees as executors, and there is ip this respect'mo breach of the agreement. -
- But we do not care to place our decision upon this ground- alone. The complaint was also properly dismissed because the agreement as to commissions is void as against public policy. The plaintiff" could no inore for a consideration dispose of his right1 to 'act as
In Matter of Worthington (supra) it was held that an agreement to dispose of commissions until they had been actually ascertained and fixed by the surrogate was void as against public policy, inasmuch as it diminished the incentive to diligence and zeal in the administration of the trust. If the commissions of an executor which have been partially earned cannot be assigned until they have been actually ascertained and fixed by the surrogate, much less then can an agreement not to perform any service at all, for a consideration, be enforced.
But we do not understand that this question is an open one in this State. In Staunton v. Parker (19 Hun, 55) it was held that an agreement to renounce the office of executor for a consideration was void as against public policy. It is true the agreement there was made prior to the death of the testator, but that is immaterial. The principle to be applied is the same, which is, that a person who is named as executor in a will cannot dispose of that position for a consideration. The words of the surrogate, used in refusing to give effect to the agreement in that case are quite pertinent to the present one. He said: “If agreements of this nature are to be enforced, then surely testators may well doubt not only as to who will carry out their wills, but whether they will be carried out at all; * * * and if the will may be varied by agreement in the
A similar view has been entertained of agreements of this character in other courts. (Owings v. Owings, 1 Har. & G. 484; Bowers v. Bowers, 26 Penn. St. 74; Ellicott v. Chamberlin, 38 N. J. Eq. 604; Porter v. Jones, 52 Mo. 399 ; Currier v. Clark, 75 Pac. Rep. 927.)
It follows that the judgment appealed from must be affirmed, with costs. - 1
O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt, .P. J., concurred in result. .
Judgment affirmed, with costs.