#### In the Matter of the Judicial Settlement of the Account of Anton Popp, as One of the Executors, etc., of Marianne Kempf, Deceased, Respondent. Jacob Kempf and Marianne Kempf, Infant Legatees, by Their General Guardian, Franziska Heck, and Franziska Heck, Individually, as Legatee and as Executrix, etc., of Marianne Kempf, Deceased, Appellants; Anton Kempf and Others, Legatees, Respondents.

Second Department,

December 5, 1907.

Executors and administrators -r- extra compensation for carrying on ' business, ■

A surrogate is not authorized to allow an executor directed to continue his testator’s business extra compensation for so doing. He cannot be allowed compensation from the estate of the decedent other than, chat fixed by statute, except for services apart (rom and’ entirely outside his office,, as an individual, nor is he entitled to extra compensation for services merely because he might ■employ and compensate another therefor.

An agreement by beneficiaries to allow an executor extra compensation is subject to the general rule governing transactions between trustee .and beneficiary: •while not void, it is voidable and may he attacked as unfair and inequitable.

When two of several beneficiaries consent in open court to an allowance of extra cqmpensation to an executor, it is not a consent that the same be paid in full out of their shares, but only that their shares be charged with their proportionate part. ' ' ■ S i.'.

Cases collated and distinguished.

*3Appeal by Jacob Kempf and another,.by their general guardian, and another, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of April, 1907, settling- the accounts of Anton Popp, as executor, as allows the said executor extra compensation for continuing the business of the testator as directed by the will, and working therein.

*Leopold Blumberg,*for the appellants.

*Melville L. France,*for the respondent Anton Popp.

*Michael F. O’Brien,*for, the respondents Rosa Stanch and Henrietta Kempf.

Gaynor, J.:

The surrogate allowed one of the executors on his accounting extra compensation for continuing the business of the testator, and working therein, the will directing that the business be continued, but providing no extra compensation therefor to the executors.

At common law executors and administrators were not allowed any compensation for their services *(Manning v. Manning,*1 Johns. Ch. 527). This remained so in this state until 1817, when the Legislature empowered the court of chancery “ to make a reasonable allowance to them for their services ”, on the Settlement of their accounts, and prescribed that when “ the rate of such allowance shall .have been settled by the chancellor,; it shall be conformed to in all cases of the settlement of such accounts” (Laws of 1816-1817, ch. 251; *Mc Whorter*v. *Benson,*1 Hopk. Ch. 28). The chancellor thereupon adopted a general rule establishing a percentum on all moneys received and paid out as such compensation (3 Johns. Ch. 630). It was incorporated into the Revised Statutes of 1830 (Vol. 2, p. 93, sec. 58), and from there went into the Code of Civil Procedure (sec. 2730).

It follows that the statute compensation is all that an executor or administrator may be paid for his services. There can be no exception to this riile. If he be allowed compensation out of the estate of the deceased other than that fixed by statute, it cannot be for services in his office, but only for something he has done apart from and entirely outside of- his office, *i. e.,*as an individual and *4not as an executor, or administrator. It is not enough that he does something" for the estate which he has-'th.e right, to, employ another to do ánd pay him for out. of the estate. That is not .a-test; on the contrary,. - it must he something which does not come within the province of his office at all, either for him to do personally or employ another to. do for the estate. '

In *Vanderheyden*v. *Vanderheyden*(2 Paige, 287) the charge of .a guardian for the care and superintendence of the.infant’s real property, in addition to the statute compensation:—which,-is, the same in tlie case-of trustees and guardians as in the case, of executors — was disallowed; in the *Matter of Bank of Niagara*(6 Paige, 213) a receiver was. disallowed for his services as attorney and counsel in the'business of the trust; in *Clinch*v. *JEckford*(8 Paige, 412) one of the. executors was held entitled to extra compensation -for any sei*vices he should render as clerk and book- ■ keeper of the estate, b.ht only because the will expressly authorized it; in *Lansing*v. *Lansing*(45 Barb. 182) an executor worked out the highway tax of the testator instead of paying it or hiring another to work it out, and was allowed therefor in his accounting by the Genei'al Term of the Supreme Court; in *Collier*v. *Munn*(41 N. Y. 143) the charge of an. executor, who was an- attorney and counselor at law, for extra compensation for his professional services in defending an -action against the estate, at the request of his fellow -executors, was disallowed ; in the *Parsee Merchant’s Case*(11 Abb. Pr. [N. S.] 209) the- compensation allowed by -the Special Term was tó a committee of his person, there being a separate committee of the property, and the case therefore lias no application ; in *Morgan*v. *Hannas*(49 N. Y. 667) the charge of a-guardian for services rendered by him as attorney and counsel in the affairs of his ward was disallowed; in *Lent*v. *Howard*(89 N. Y. 169) an executor was allowed compensation *for*managing and improving the real .estate of the deceased, but only because as executor he had nothing to do witli and no duty whatever in respect of the real estate, the will imposing none; in *Matter of Reed*(12 N. Y. St. Repr. 139) an administrator who acted as attorney and counsel.on the settlement of the accounts of himself andiUssociates was denied costs or compensation therefor by the Surrogate; in Matter *of Butler's Estate*(9 N. Y. Supp. 641). compensation as clerk was denied to *5an executor by .the Surrogate ; in *Matter of Ingersoll*(6 Dem. 184) tiie Surrogate disallowed a charge by an executor for the use of his own horse and wagon in collecting the assets of the estate ; in *Matter of Hayden*(54 Hun, 197) an executor was disallowed a salary for superintending and carrying on the business of the deceased. He had performed the same service for the deceased in his lifetime, and his two co-executors, who were also interested under the will, employed him to continue therein at the same salary, the will authorizing the executors to continue the business for a year. There is a *dictum*that if the persons who agreed to the salary were the only persons in interest under the will it would have been allowed. Nothing is said as to whether those who did agree were not bound in proportion to their shares, or in full. In *Matter of Taft's Estate*(8 N. Y. Supp. 282) compensation was disallowed by the General Term of the Supreme Court to an executor, one of the surviving partners of the deceased, for carrying on the business, the will directing it to be carried on, but authorizing no extra compensation ; in *Woodruff*v. *N. Y., L. E. & W. R. R. Co.*(129 N. *Y.*27) a trustee was disallowed compensation for his services as an attorney and counsel for the trust; in *Matter of Braunsdorf*(13 Misc. Rep. 666) an executor who was a shilled machinist was allowed compensation by the surrogate for his services in" carrying on the mechanical business left by the deceased, the services having been rendered at the request of the next of kin, the parties interested, so as to complete the articles in process of manufacture at the time of the death of the- testator. The will did not authorize the continuance of the business. In *Matter of McCord*(2 App. Div. 324) the will required the executors to collect the rents of the houses'left by the testator and pay the same over to the widow and heirs until the executors should have sold the same under the power of sale given to them in the will. One of the executors had been employed by the testator to take charge of the said houses and clean, paint and repair them for a weekly salary. This agreement was continued by the widow and heirs, all of the parties in interest. The compensation was allowed. In *Matter of Young*(17 Misc. Rep. 680) the real estate was left to the executors in trust to manage and improve it, and collect the rents and pay them to the widow and otherwise dispose of them, and one of the executors devoted his time to managing the estate. The parties in *6interest 'agreed in, advance that lie- should be allowed a specific monthly salary in addition to his statutory compensation “ as compensation for his services :-as executor and trustee as aforesaid ”, and the surrogate allowed it. In *Matter of Hosford*(27 App. Div. 427) the executors were directed to convert the realty into 'personalty arid ' distribute the proceeds; An additional compensation for their services in respect of the real estate was disallowed. In *Parker*v. *Day*(155 N. *Y.*383) compensation was allowed to the law partner of the executor for services to the estate, but only because it appeared that the executor was excluded from all share therein; *in Matter of Moriarity*(27 Misc. Rep. 163) the surrogate allowed compensa’ , tion to a temporary administrator; who had been the. manager.of the business of .the deceased, for carrying on such business under tlie , direction of the surrogate, although the will did riot provide there- ' for; in *Russell*v. *Hilton*(37 Misc. Rep. 642).the Special Term, allowed compénsation to an- exechtof for his services as architect in repairing the houses of the estate^ the real estate being left in trust to the executors to collect and. pay out, the income; in *Matter of Dummett*(38 Misc. Rep. 477) the surrogate. denied -compensation to an executor (he also being surviving partner) for his services iri continuing the business-as authorized by the will, which did not provide for extra compensation ; in *Clausen*v. *Puvogel*(114 App. Div. 455) the same tiling was decided, but with .the *dictum,*that if he had done,so at the request of all the parties in interest he would be entitled to -compensation;

From this review of tlie cases it is plain that ■ the rule as stated above is- settled. ' The decisions in *Matter o*f *Moriarity*and Russ*ell*v. *Hilton (supra)*have to be disapproved. . In the case before ' us it would be agreeable to justice to allow the executor the extra compensation, but, as is often the case, though justice demand policy forbids. It is of great im-portauce that the rule be hot. departed from; Once relaxed, the asking and giving of extra compensation would grow apace and-become an intolerable abuse;

There is some evidence that .the three adult parties in interest agreed- in advance to the extra compensation, -but -there is no finding of fact on that head. But two of them consented in open court to the extra compensation. This cannot be construed as a consent that, the same be paid in full out of their shares, but only that their . *7shares be charged with their proportionate part thereof. The judgment should be so modified in respect of them. The case should go back for a finding of fact whether the other adult made the agreement, and additional evidence may be taken. Where it is permissible at all for an executor or trustee to make such an agreement with -his beneficiaries, it is subject to the general rule in respect of transactions between trustee and beneficiary, that while it is not void it is voidable, and may be called in question for unfairness or any inequitableness..

The decree is modified in accordance with the foregoing.

Woodward, Rich and Miller, JJ., concurred; Hirsohberg, P. J., not voting.

Decree of the Surrogate’s Court of Kings county modified in accordance with the opinion of Gaynor, J., and as modified affirmed, with costs to thé appellants payable out of the estate/ ***