In re the Judicial Settlement of Accounts of Taft — 5 Silv. Sup. 370

Majority

p. 370

In the Matter of the Judicial Settlement of Accounts of Albert S. Taft et al., Executors, etc.

Supreme Court, Fifth Department, General Term,

December 30, 1889.

Headnote

1. Executors, etc. Compensation.—Executors are not entitled to any compensation, beyond their commissions, for performing the duties imposed upon them by the will, unless the will provides for such extra compensation.

2. Same. Partners.—The surviving partner will not be allowed compensation for his own services in the conduct of the firm business, as against the share of the deceased partner.

3. Same. Vouchers.—Payments of large amounts will not be allowed without vouchers.

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

C. A. Keeler, for executors, appellants.

H. W. Morris, for legatees, respondents.

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

p. 371

ness, 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 Avith the other surviving partner, until the son William should become of age.

The questions presented by this appeal relate to the dis-allowance by the surrogate, in whole or in part, of two items of credit claimed by the executors. One of them Avas an item of $950 for compensation to themselves, or to the executor, Albert S. Taft, and the other surviAdng partner, for their trouble in carrying on the business after the death of the testator. This item Avas properly disallowed! Surviving partners are not allowed compensation for their OAvn 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 folIoavs : 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 arriAÚng 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 alloAv

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anee 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 accord-' anee 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 determined 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.

Cases cited

Collier v. Munn 41 N. Y. 143 N.Y. 1869-09-24 p. 371