In re Archer's Estate

The testator’s will was admitted to probate about the year 1881. Charles D. Archer and Allison M. Archer, the contestant, were appointed executors thereof, and authorized to then qualify. George A. Archer was named also as an executor, but not to qualify until he arrived at 21 years of age. Charles and Allison qualified at once, and entered upon their duties. George qualified in about the year 1883, on his arrival at 21 years of age. In a proceeding commenced in January, 1888, Allison was enjoined from acting further as executor, and removed as such later in said year by a decree in such proceeding. Since the commencement of that proceeding the accounting executors have continued to act in the administration of the estate. This proceeding is to settle and adjust their accounts.

In the consideration of the questions submitted to me for my determination I shall follow the order in which the same are presented by the counsel for the contestant, Allison M. Archer, who alone interposes objections. His first claim is that the accounting executors should be charged for the half earnings of a barge known as the M. A. Archer for a portion of the year 1885 and the whole of the year 1886. This was a vessel constructed in the year 1883 for the freighting of bricks from an estate brickyard. The arrangement under which this vessel was to be constructed and paid for seems to have been made through one T. W. Johnson, whereby the Archer estate was to become half owner and Johnson the other half owner, and the barge was to be provided with freight from the Archer brickyard. The Archers were to pay in part, and the remaining portion, one-half its cost, was to come from the earnings of the vessel. The barge cost $5,173.16. The Archer estate paid to the builders $1,000, and to Johnson $329.22, on account of their half of such cost, leaving a balance of $1,257.36 to be paid by the earnings of the vessel. It appears from the testimony that about July 5, 1884, the gross earnings of the barge had reached $5,717.27, which, after deducting the running expenses of $2,633.10, left a net result of $3,084.17, to one-half of which the estate was entitled to credit in reimbursing Johnson. Evidently the whole of one-half of these earnings was not applied towards the payment of the balance due for the purchase price. Some other application of a portion of them must have been made, for it appears without contradiction that about January 6, 1885, Johnson and the executors had a settlement of the barge matters, and there then appeared to be a balance still owing on the Archer half of the barge of $149.02. It seems to be conceded that for the years 1885 and 1886 following this settlement and the fixing of

As to the balance of the earnings of the barge for the year 1888, of $420.37, the executors concede that the same is correct, and that they should be charged therewith. The counsel for the contestant claims that the item of credit of $31.50, “freight on wood,” in Schedule 1, Ho. 8, of the accounts, should be disallowed, on the ground that the proof shows it to be a part of the item $122.19, in

“Should my sons Charles and George and my said wife desire to continue to reside in my dwelling house where I now reside, then my will is that they may occupy my said dwelling house, and the lot and bam used therewith, and the furniture and property in the house and bam, so long as they desire so to do, without paying rent therefor during the lifetime of my said wife, each paying one-third of the actual living expenses of the household.” Should my son Allison desire to reside where he now does, my will is that he may

do so without paying any rent during the lifetime of my said wife.” “Should my three sons and my wife desire my son Allison and his family to reside with them where I now reside, then my will is that he may do so, so long as they desire.” “The provisions herein made for my said wife are in lieu of her right of dower in my property.”

Thus it appears that the estate is devised in trust to the executors, including the homestead dwelling, lot, and barn, and in them was lodged the legal title, with the duty of maintaining and protecting the same during the continuance of the trust, during the widow’s lifetime, (Stevenson v. Lesley, 70 N. Y. 512 ; Crooke v. County of Kings, 97 N. Y. 421 ;) and it was their duty to not only receive such rents, income, and profits, but out of the same to pay and discharge all taxes, insurance, and repairs, and pay over the balance in accordance with the directions of the will. In re Brewer, 43 Hun, 597 ; Young v. Brush, 28 N. Y. 667 . A trustee may, at the expense of the estate, cause necessary repairs to be made to the buildings. In re Odell’s Estate, (Surr.) 4 H. Y. Supp. 463; In re Jones, 37 Hun, 430 . Here the entire estate is given in one general trust, and the entire estate must therefore discharge such liabilities. I do not see that any discrimination can be made either in favor of or against any party for expenses incurred as to any particular part or portion of the estate. The testator clearly intended to merge the whole income of the estate, and to have the same distributed or paid over as directed, after deducting therefrom all proper expenditures in maintaining and preserving the trust properties and the expenses of administering the trust. The right to occupy the dwelling and homestead property given to the widow and two sons was not intended to divest the title and supervision of the executors of that portion of the estate, nor to relieve them from the care and protection of the same. The testator relieves the widow and sons from paying rent, and only imposes upon them the payment of the “actual living expenses of the household.” If it was his purpose to have them pay or to be charged with the further expenses of repairs and taxes, it would seem that he would so have expressed his wishes. He therefore left' that property, as well as all other, including also the premises where the contestant then resided, and a right of occupancy of which was given to him free of rental, also, during the lifetime of the widow, under the charge of the executors. It therefore appears that these items of payments for repairs and taxes were properly chargeable to the estate generally, and the credits in their accounts should stand. Hancox v. Meeker, 95 N. Y. 528 .

The item of $90.50, as paid to Jones & Furman, is not properly a credit, as the testimony stands. It was for. coal sold to that firm, and for which they owe the estate. To entitle the executors to such credit it should be shown to be uncollectible without their fault, or that actual credit has been given in the nature of a payment or set-off on an account or claim against the estate. This latter is what it is claimed is to be done upon a settlement or adjustment with Jones & Furman, but until that is done the credit can

The item of- $15.70 to O. C. Cooper for hay is not established. Allison Archer testifies that the hay was for the private or individual purposes at the homestead, and Charles has no recollection about it. I find no voucher, and the burden is upon the executors to establish the credit. To establish such an expenditure, the same must, where there is no voucher, “be supported” by the “uncontradicted oath of the accounting party, stating positively the fact of payment,” etc. Code Civil Proc. § 2734.

Objection is made to the credit of the sum of $361.26, which forms a part of the item of $638.92, in a charge against the contestant in Schedule K, under date of-May, 1885. As to this credit, Charles Archer, in his testimony, says that this charge of $638.92 against the contestant is made up oí two items,—$277.66 and $361.26,—as shown by the personal account book at the top of pages 100 and 101. This book contains the following entry at the top of page 100: 'Dif. in wood account, 1883 & 84, overdrawn” $361.26. On page 101: 'Dif. in brick and wood acc’t, $277.66.” The contestant testifies that this $361.26 was for money he loaned “them,” (meaning the other executors,) and that they paid him back; and he says they never charged that to him until he was set aside as executor. He said this latter statement could be proved by a Mr. Markham, but that was not done. George Archer was asked to explain this item, and, as I understand his testimony, this balance of $361.26 arose out of wood and brick transactions between the contestant and the estate, upon an adjustment of which there remained a balance due from him to the estate, and which was entered as a charge against him in his . individual account. I do not understand that the accounting executors ask any credit for paying that sum. It is simply a question of whether or not the charge shall stand as an item against the contestant. This testimony of George, and his explanation of the matter, is not denied by the contestant, except by his testimony that I have cited. It seems to me that at this late day, upon this evidence, the contestant cannot avoid this charge against him. It seems strange, if it were a loan, that such odd figures would have appeared. Again, if it were to repay a loan, there should be something to appear in written form to sustain that claim. At that time the contestant was an acting executor, and during the years following it seems that he would havé had some entry thereof made upon the books to show that this was a loan, especially where it does not appear that he had a writing to show it to be a loan. 1 think the charge should stand.

The contestant claims that either the item of $175 of “Schedule I, No. 8,” “September 29, 1881, schooner G. Harrington, (cargo of wood,)” or “$176, September 30th, Capt. schooner General Harrington, balance on cargo wood,” should be disallowed, on the ground that the items relate to one transaction, and that but one payment was made. . Charles Archer testifies that in a former proceeding

I do not think that the objections should prevail as to the payments to the Brick Manufacturers’ Association. These payments seem to have been made through or by reason of some arrangement of the brick manufacturers for their benefit and the trade. I am not prepared to say that the payments were not legitimate, under the circumstances.

An objection is made to the allowance of the payment of the item of $250 to Calvin Frost, as counsel fee, for services rendered and advice given the executors. The only entry as to the same appearing in the accounts filed is, “Calvin Frost, attorney, $250.” Nothing there appears as to the services of counsel for which the payment is claimed to have been made. The only testimony as to this item appears to have been given by the executor Charles D. Archer. He identifies a receipt for the payment of this sum to Mr. Frost, and says that payment was for an opinion; that subsequently a proceeding was brought against his brother, who is this contestant, to remove him as executor, and that Mr. Frost was consulted all the way through that proceeding. This is, in substance, all of his testimony as to what the payment was for. The opinion is not before me. I do not consider the proof sufficient to call for the allowance of this item. So far as that proceeding is to be considered, the executors were fully represented by other able and competent counsel, who was fully paid, and the executors are credited and allowed for all such expenditures. To entitle them to incur an expense chargeable to the estate for further counsel some proof should have been adduced showing the circumstances which made that necessary for the proper administration and protection of the estate. Nothing of that kind appears. The burden of proof was upon the executors to establish this charge. The mere fact of payment by an executor or administrator of a sum of money for attorneys’ fees is not sufficient to cast the burden of impeaching its justice upon the objector. Estate of Nocken, 15 N. Y. St. Rep. 731 ;

The testator, as we have stated above, made this provision in his will: “Should my son Allison desire to reside where he now does, my will is that he may do so without paying any rent, during the lifetime of my said wife.” This son, the contestant, then resided in a dwelling which constituted a part of the estate of the testator. He continued to reside there until April 1, 1882. He then removed therefrom; from what appears, voluntarily. There is no proof that he has ever been excluded from the -occupancy of this dwelling, and yet he contends on this accounting that he should receive the rentals from the executors which they have collected from tenants who have since his removal occupied the same. This claim is without foundation. The executors were entitled to receive all income from the estate; and when the contestant abandoned these premises he surrendered all control over the dwelling apartments, and it devolved upon the executors to assume possession and control of the same, and to obtain an income therefrom as a part of the estate. The contestant’s interest was simply a right of occupancy as a home for himself and family. As soon as he abandoned or surrendered this right by removing therefrom, he gave up all benefit to be derived from the same, given him under the will. The rentals received by the executors for this dwelling therefore constituted a part of the estate, and. is distributable with the other income in accordance with the directions of the will.

We come now to the consideration of the remaining matter submitted by the contestant’s counsel. About February 1, 1887, the one-half interest of T. W. Johnson in the above-mentioned barge M. A. Archer—the estate owning the other half—was purchased of Johnson for the consideration of $2,300 and the bill of sale thereof taken in the individual name of the executor George Archer. The contestant claims that this purchase was one for the estate, and that the property thereby acquired, and the earnings thereof, should be accounted for as estate property and assets. George Archer claims that the purchase was an individual transaction, and that the estate has no interest therein, and that he is not accountable therefor as an executor. From a careful review and consideration of all the circumstances connected with the purchase of this half interest in this barge, and the relations of the parties, I have reached the conclusion that this purchase must be held to have been one in the interest of„ the estate, and which must be treated and considered as such on this accounting. This barge was first acquired in the belief that it would be a profitable investment as a part of the estate business. The earnings of the same for the years preceding the year 1887 had demonstrated that it was such from the profits, realized therefrom. The earnings showed a large return to the owners of the vessel on the capital invested. The freighting was a usual and ordinary part of the

If Charles is a party to be benefited by this transaction, why not Allison? There is nothing really prejudicial to the contestant’s claim in the fact that the bill of sale was taken in George’s name. The accounts and other evidence show that with the approval of -all parties other valuable properties, purchased in behalf of the estate, were taken in the name of George alone, and yet conceded to be a part of the estate, in the benefits from which all are to participate. Then why not, also, in this barge and its earnings? George does not claim to have put but $50 in the barge. Why .should he absorb this profitable branch of the estate business to the exclusion of the others, made equal under the will of his father. The first half of the barge acquired by the estate was paid for by its earnings in two or three years. George knew this, and he ought not to be permitted to acquire the second half to the detriment or loss of the estate, and paid for in the same manner. Charles, it seems, is interested in another barge, the Clara, furnished profitable freighting from the estate brickyards. It does not seem to me fair nor equitable that Allison should be shut out of his .share of the benefits from this transaction. These executors occupy a fiduciary relation to the contestant in the administration of this estate, and they cannot equitably refuse to share not only all direct benefits, but also all incidental pecuniary advantages out of the same. If this be not so, then the trustee may, through his experience and observation in the management of trust property, learn of the incidental advantages and benefits that may accrue therefrom, and absorb and prosecute them to his individual profit. The law holding trustees to a faithful and honest administration of trust and fair and just dealing between persons associated together in fiduciary relations does not permit that. Equitable as well as legal rules are applicable. Upson v. Badeau, 3 Bradf. (Sur.) 13. A trustee cannot make any profit to himself from a secret transaction initiated while the relation of trustee and cestui que trust exists. Green v. Green, 2 Redf. (Sur.) 408; Gardner v. Ogden, 22 N. Y. 327 ; Mitchell v. Reed, 61 N. Y. 123 . The principle of the rule of equity which prohibits purchases by parties placed in a situation of trust or confidence, that no such person can be permitted to purchase an interest in property, and hold it for his own benefit, where he has a duty to perform in relation to such .property which is inconsistent with the character of a purchaser

“The functions, rights, and duties of partners in a great measure comprehend both those of trustees and agents, and the general rules of law applicable to such characters are applicable to them. Neither partner can, in the business and affairs of the firm, clandestinely stipulate for a private advantage to himself. He can neither sell to nor buy from the firm at a concealed profit to himself. Every advantage of the firm must inure to the benefit of the firm. These principles are elementary, and are not contested.” •

My conclusion is that this purchase of the Johnson half of the barge must be decreed to be one in behalf of the estate, and the purchase price paid, and the earnings of such half accounted for, as an estate transaction. In the adjustment thereof George Archer may be reimbursed for the cash he may have paid individually, and I will allow on such adjustment the $186.50 paid by Charles and George Archer to Denton Fowler as the debt of Allison to Johnson evidenced by the $175 note. It seems to me that this note was paid in connection with the purchase of Johnson’s interest in the barge. It appears to have been a payment made without Allison’s authority, as half of the amount paid was at the time charged on the books to each Charles and George individually, and they took an assignment of the note and debt from Fowler upon making such payment, which shows a purchase of the note as a debt to be thereafter collected by them. Allison should allow this payment, however, in the adjustment of the barge transactions on the settlement of the decree herein in the adjustment of the equities. Let a decree be presented accordingly for settlement and entry; costs to each party to be paid out of the estate.