76 N.Y.S. 233 | N.Y. Sup. Ct. | 1902
The purpose of this action is to obtain a judicial construction of the last will and testament of Henry Hilton, deceased. The testator had been successively a lawyer in active practice, a judge of the Court of Common Pleas of the city of New York, and a successful man of affairs, engaged in large enterprises. His will is in his own handwriting and is extremely inartificial in form, suggesting numerous questions of construction. In view of the testator’s life history it is to be assumed, however informal his will may be, that he used the language in which it is couched, with a precise appreciation of the legal meaning and effect of words and phrases, and that even slight differences of expression regarding the disposition of the several shares of his estate are to be considered as
The provision respecting the share and interest allotted to Edward B. Hilton is couched in language similar to that used with regard to the share of Cornelia H. Hughes with the important addition of the following clause: “ Further my executors are authorized and empowered, in their discretion, during the life of said Edward B. to pay over not exceeding two-thirds of his share to his said wife Dorothy.” To give effect to this clause it follows that the corpus of the share, or interest must be held by the executors during the life of Edward B. Hilton. The income of course is to be paid to him, subject to the discretionary power vested in the executors to pay not exceeding two-thirds of the income, or of the principal, or of both principal and income to his wife. Since this construction is concurred in both by the executors and by Edward B. Hilton and his wife, the reasoning by which it is reached need not be elaborated.
The provision respecting the share, or interest allotted to' the testator’s son, Albert B. Hilton, has been elaborately discussed upon the briefs. It reads as follows:
*648 “ The share and interest herein of my son Albert B. Hilton shall also be incapable of being sold, assigned, or transferred, or in any manner controlled by him, and as to which I fully authorize and empower my executors to retain and withhold the same, in trust, to pay out, or pay over or apply so much and such parts
The will contains the following provision: “Ninth. My executors are hereby authorized in their discretion to set apart out of my estate the sum of twenty-five thousand dollars out of which they may from time to time as they see fit pay to or for the use of my son Henry G. Hilton and his wife Agnes F. or to or for the use of either of them, such sums and amounts as my executors shall see fit, or shall consider fit and expedient.” Henry G. Hilton instituted a contest of the will, and thus by virtue' of a minatory provision contained therein, debarred himself from reaping any benefit under the clause above quoted. The executors elected to exercise the power of appointment conferred by the clause, and appointed Agnes S. Hilton as the person to reap the benefits under the power. Payments were made to her from time to time, although the fund of $25,000 was never actually severed from the estate. She has died, and her administrator claims so much of the $25,000 as has not been paid to her. This claim cannot prevail. There was no gift of the sum either to Henry G. or Agnes S. Hilton, and no indication of an intent on the part of the testator that the legacy should ever vest in them or either of them. The plain intention of the testator was that the sum named should be held by the trustees and paid out by them in their discretion for the personal benefit of the persons named, an object which necessarily failed when the sole beneficiary died. The case is to be distinguished from those in which there has been a clear gift of the legacy, with the time of payment alone postponed or left discretionary. That the clause vested in the executors a valid power in trust is not questioned.
A question is suggested as to the power of the executors to employ one of their number to perform certain duties, not strictly executorial in their nature, and to pay him out of the income of the estate, a sum in excess of his commissions, which by the terms of the will are limited to a sum much less than he would receive if he were paid the commissions allowed by law. While it is unquestionably the general rule that an executor cannot receive compensation for services rendered to the estate as executor, beyond his commissions allowed by law, or by the will, there have been numerous cases in this State where such additional compensation has been allowed for services not strictly executorial in their character. Lent v. Howard, 89 N. Y. 169; Matter of Braunsdorf, 13 Misc. Rep. 666; Matter of McCord, 2 App. Div. 324; Matter of Moriarity, 27 Misc. Rep. 161; Matter of Young, 17 id. 680. The question presented by the case at bar seems to fall within the principle upon which these authorities rest. If the executor in question did not devote his time to the duties for which it is sought to compensate him, it would be necessary to employ some one else to perform them, and the compensation of the person so employed would be a legitimate charge against the estate. The executor in question is peculiarly fitted by professional knowledge as an architect, and by long experience in the service of the testator to perform these duties, and no good reason is apparent why the estate should lose the benefit of his services, or depend upon some one presumably less competent. The amount of his compensation cannot properly be determined in this action, but should be left for the executors’ accounting.
A decision and decree in accordance with this opinion may be settled upon five days’ notice.
Judgment accordingly.