In re the Judicial Settlement of Accounts of Taft — 28 N.Y. St. Rep. 315

Majority

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In the Matter of the Judicial Settlement of the Accounts of Albert S. Taft et al., Ex’rs, etc., of Gilbert T. Taft, Deceased.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

1. Executoks and administrators—Accounting.

Testator bequeathed his interest in a firm, to his son, and directed his executors to carry it on with the surviving partner until the son came of age. On their accounting the executors claimed credit for a certain sum as compensation to themselves and the surviving partner for their trouble in carrying on the business. Held, that the claim was properly disallowed.

2. Same.

Absence of vouchers for payments is fatal to their allowance.

Appeal by the executors from a decree of the surrogate of Monroe county.

C. A. Keeler, for ■ ex’rs, app’lts; H. W. Morris, for legatees resp’ts.

The estate left by the testator consisted, principally, of his one-third interest' in a patent medicine business,

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"which, at the time of his death, was owned and carried on by the firm of Taft Bros., composed of the deceased, his brother, Albert S. Taft (one of the executors) and William Main. By his will the testator bequeathed his interest in the business to his son William (an infant) charged with the payment to his daughter Lillie of one-third of his share of the profits; and he provided that the business should be carried on by his executors, in conjunction with the other surviving partner, until 'the son William should become of age. ■

The questions presented by this appeal relate to the disallowance by the surrogate, in whole or in part, of two items of credit claimed by the executors. One of them was an item of $950 for compensation to themselves, or to the executor, Albert S. Taft, and the other surviving partner, for their trouble in carrying on the business after the death of the testator. This item was properly disallowed. Surviving partners are not allowed compensation for their own services in the conduct of the business, as against the share of a deceased partner. Parsons on Partnership, 230; Caldwell v. Leiber, 7 Paige, 483, 495. Nor are executors entitled to any compensation beyond their commissions as such for performing the duties imposed upon them by the will, unless the will itself provides for such extra compensation. Collier v. Munn, 41 N. Y., 143 ; Morgan v. Hannas, 13 Abb., N. S., 361; see, also, In re Hayden's Estate, opinion of Barker, P. J., 26 N. Y. State Rep., 911.

The item of $950 is not, in terms, contained in the account rendered by the executors, but it is involved therein as follows: The executors charge themselves with the sum of $1,600.09, as one-third of the net profits of the business; and the executor, Albert S. Taft, testified that, in arriving at the total net profits of the business, they included in the expenses, charged against it, the sum of $950. In regard to this charge he testified, “ the $950 is not what we have actually paid out, but what we think is an equitable allowance for performing the labor of taking care of the business.” Aside from the general objection to any charge of this character, there was no evidence whatever of the value of the services for which the charge was made. The surrogate corrected the account in this respect, by adding one-third of $950 to the one-third of' the net profits of the business as stated by the executors. In so doing he proceeded in accordance with the principles above stated.

The other item of the account which is brought in question was that in which the executors credit themselves with the sum of $1,387.75, for cash paid to the mother and guardian of the infant legatees, on their share of the profits of the business. The question on this branch of the case was purely a question of fact, viz: whether payments to the amount of $965.50, embraced in the total above mentioned, were made to Mrs. Taft, as guardian, and for the benefit of the legatees, or to her, individually, on a note which she held against the firm of Taft Bros., which was more than six years past due, but which Albert S. Taft, in recognition of his moral obligation, had promised to pay. The question was de

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termined by the surrogate upon evidence somewhat conflicting but which amply supports his finding, in that respect, in favor of the legatees.

There was the further objection to the allowance of these payments that no vouchers were produced or filed for any one of these payments in question; an objection which seems to be fatal to the claim, under the statute. Code Civ. Pro., § 2734.

We find no error in the disposition of the case by the surrogate. The decree should be affirmed.

Decree affirmed, with costs to the contestants payable out of the estate.

Barker, P. J., and Macomber, J., concur.