In re the First Judicial Accounting of Nester

Howard, J.: Samuel K. Wester died January 10, 1908. The appellants and several other persons were appointed executors of his will. The executors, other than the two appellants, were members of the family of the deceased, that is, they were his wife and his children. The testator directed in a codicil to his will that none of his executors should receive any compensation except the appellants here, and as to them the codicil provides: “ Except that Montgomery S. Sandford shall receive an annual salary of One thousand Dollars, and that David S. Wester shall receive * * * an annual salary of Fifteen Hundred Dollars. The above salaries to be in full for all commissions or salaries as executor or trustee.” The appellants and three others of those who were appointed executors qualified and have all acted as such continuously up to this time. A few months after the will was probated an action was brought in the Supreme Court by certain members of the family for a construction of the will. This action did not terminate until March 15, 1910, at which time a decision was rendered (See Nester v. Nester, 68 Misc. Bep. 207) sustaining the will generally but holding-invalid certain provisions thereof, anlong which was a provision that the executors and trustees should pay to the widow the sum of $3,000 per year during her life. From the time [226] of their appointment and up until May 10, 1910, each of these appellants drew regularly each month one-twelfth of the annual salary given to him -in the will; that is, David S. Nester drew $125 each month and Montgomery S. Sandford drew $83.33 each month. About two months after the decision of the Supreme Court holding invalid the annuity to the widow, the appellants filed in the office of the surrogate a written paper purporting to be a renunciation of the specific compensation given to them by the will and electing, in lieu thereof, to take for their services the commissions allowed by law. They did not cease, however, to receive the specific compensation, but continued as before to take out of the funds of the estate their salary each month. The appellants were the two executors having the active management of the estate and the checks for these salaries were made out by the appellant Nester. They were signed by Nester and by the appellant Sandford. A few of them were signed by one of the other executors. At the time the appellants filed their written renunciation they did not inform their coexecutors, either in consultation or otherwise, of their purpose to renounce the specific compensation and demand the commissions allowed by law. In fact they concealed, and intended to conceal, and they admit that they intended to conceal, from their coexecutors and the other persons interested in the estate their purpose to renounce. Previous to the alleged renunciation there appeared on each check these words: “ This check is accepted in full settlement of the following account. Ac. Executor’s Salary. ” After the attempted renunciation, Nester, who prepared these checks, substituted in place of the words “ Ac. Executor’s Salary” the words “Ac. Executor’s Corns.” And in the books of the company kept by Nester he substituted the abbreviation “Corns.’’for the word salary. At the judicial accounting in September, 1913, the appellants first made known their purpose to demand commissions as executors and as trustees. The amount in dispute is very large and substantial, the total amount of commissions demanded by the two appellants being $69,102.48. The salary which has been paid to them up to the time of the accounting, covering the same period, is $13,899.83. An executor has a right within a reasonable time to renounce [227] the specific compensation given to him by the will and elect to take the allowance given to him by law. (Code Civ. Proc. § 2730, as amd. by Laws of 1905, chap. 328; now Id. § 2753, as amd. by Laws of 1914, chap. 443.) These appellants attempted to renounce about two years and four months after the probate of the will. This was not an unreasonable time to wait before announcing their determination, providing that nobody’s interests were jeopardized by their failure to reach a conclusion sooner. (Matter of Arkenburgh, 38 App. Div. 473.) But it is contended that, in the meantime, the appellants had waived the commissions allowed by law and had elected to accept the specific compensation provided in the will. Many decisions have been called to our attention holding that the intention of an executor to waive a statutory right need not necessarily he proved by express declarations, but may be shown by the acts and conduct of the parties. It is unnecessary for us to note such cases here or quote from those opinions for the soundness of the proposition is too apparent to need either precedent or argument to establish it. We are fully of the opinion from the facts presented in this case that these two executors did elect to accept the specific compensation provided in the will instead of the allowance made by law. This election, we believe, was made at the time the appellants qualified and assumed the duties of their offices, and that they continued of this mind for a considerable period thereafter is perfectly apparent. Just at what juncture they changed their minds is not so certain, but that is not of much importance. But it is contended by the appellants that there was no election here for the reason that an election cannot he made until the person electing has full knowledge of the facts necessary to enable him to make an election; and in this case they say that they did not have full knowledge of the facts until the decision of March 15,1910, which cut off the annuity to the widow, thereby abbreviating their terms of office. But this assertion seems to have little force, for very soon after these appellants assumed their offices, and more than two years before the decision was rendered, the widow had by written instrument surrendered her annuity. The appellants were fully aware of this; they recognized the validity of this surrender and acted upon it. [228] The circumstances of the Supreme Court decision cannot, therefore, he held to relieve the appellants from the election which they had previously made. The appellants elected; there can be no doubt about that. Afterwards they attempted, or at least indicated a wish, to renounce their election; but in this they seem utterly to have failed. In writing, they pretended to renounce the specific compensation; in fact, they did not renounce it at all, but continued to accept it. Had they come out boldly after the Supreme Court decision, and after filing their written renouncement, and taken the position that they had previously been deceived, thinking that their terms of office were to be continued much longer, previous to the decision, than they were to be under the decision, and that they had acted, therefore, in ignorance of all the facts, their position here would be much improved. They took no such frank and open position, however, but clung to their monthly salary with the same tenacity that they had clung to it before. They did not renounce; they only said that they had renounced. What they did amounted neither to a renunciation of their previous election nor the specific compensation. Their whole attitude in this matter does not commend itself to the court. If they had concluded to renounce their specific compensation upon the rendition of the Supreme Court decision, assuming that they had a right to do so then, it was their duty to make their intention known. Their dealing in this particular with their coexecutors, and with the persons interested in the estate, was not open and fair and above board, as the law requires executors to act, and as it is assumed that honorable men will act; they were resorting to stealth and cunning to carry their point. They concealed their purpose to attempt to get a large amount of money from the estate in excess of what the testator had willed them to have for their services; and, while harboring such a purpose, one of the appellants bargained with his coexecutors for extra pay for his services as bookkeeper. Had his associates known of his purpose to attempt to get this large sum of money in commissions they would not, it may be assumed, have agreed to the fifteen dollars per week extra compensation which they voted him. In [229] order to get this extra pay this executor stated that his salary under the will was too small, but even at that time his purpose to demand commissions instead of the salary had been fully matured in his mind. Such maneuvers, if resorted to in the business world, would breed distrust and drive away that “confidence” on which business men so much rely and on which Mr. Sandford as a banker relies. It is our conclusion, first, that these appellants, with full knowledge of the facts, elected to accept the specific compensation given to them by the will of the testator; second, that they attempted to renounce this election but failed; third, that they are not entitled to the commissions allowed to executors by law, and that the only reward for their services which they are entitled to is the specific compensation provided in the will. The decree should be affirmed, with costs. All concurred, except Smith, P. J., dissenting in opinion, in which Woodward, J., concurred, except as to the views expressed in reference to the case of Matter of Arkenburgh (38 App. Div. 473).