Bailey v. Crosby

Pierce, J. George T. Bailey, late of Malden, by his will named his wife Luella E. Bailey, executrix and trustee, and in the event of her death or declination to serve, named his oldest son, George A. Bailey, as her successor. Mrs. Bailey proved the will and served as executrix for a little over a year, when she died. She never qualified as trustee but acted as such. George A. Bailey was then appointed executor and trustee. The case comes before this court, on the appeal of the executor and trustee from a decree of a justice of this court affirming several decrees of the Probate Court allowing the first account of the executor with certain modifications, and allowing the first and second accounts of the trustee with certain modifications. It is “stipulated . . . that the only points that either appellant or appellee desires to raise upon the appeal are those in connection with the question of the compensation of said executor and trustee.” The material part of the will bearing on the question is “Item 12. I appoint my wife Luella E. Bailey, to serve as executrix and trustee, without giving bonds — under this will, and at her death, my son G. Arthur Bailey to be her successor, also to serve without bonds, and that their compensation shall be such as a majority of my heirs shall award them for their services in the care of my estate.” A majority of the heirs assented to the second account of the executrix, which account contained an item of $500 for her services and one of $200 for services of an assistant. On a contest by the present accountant and another heir the Probate Court allowed these items. The same majority of the heirs allowed this accountant $200 for similar services. The auditor finds these services were reasonably worth $700. The auditor also found that [494] the discretion reposed by the testator in his heirs was not unreasonably or unfairly exercised by them in fixing the amount of the compensation of the appellant and that the amount awarded is not inadequate. These findings of fact were not controlled by any evidence and were adopted and therefore found by the single justice. It is the contention of the accountant that he is entitled to receive a reasonable compensation under R. L. c. 150, § 14, “regardless of what the provisions of the will may be or what the heirs may say or do;” and that in any event he is entitled to receive a sum equal to the award made to his predecessor. It is common knowledge that testators frequently provide in their wills a mode or amount of compensation to executors for settling their estates. An executor who accepts the trust under a will containing such a provision is estopped from claiming any compensation other than that which he is entitled to under the provisions of the will. Rote v. Warner, 9 Ohio Cir. Dec. 536, 539. Matter of Kernochan, 104 N. Y. 618. Meacham v. Sternes, 9 Paige, 398, 403. The executor was not bound to accept the trust, but, having done so, he is entitled to receive only the compensation named in the will, whether that sum be more or less than a reasonable sum. Manning v. American Board of Commissioners for Foreign Missions, 8 Met. 566. Fernald v. Gooch, 202 Mass. 408, 412. Harper’s Appeal, 111 Penn. St. 243, 245, 251. Under the statute compensation is not an absolute right but is one within the discretion of the court to a large extent, and it may be wholly disallowed. White v. Ditson, 140 Mass. 351, 362. We are of opinion the statute was not intended to restrain testators from fixing compensation to the exclusion of any statutory allowance. The finding, that the discretion reposed by the testator in his heirs was not unreasonably or unfairly exercised, disposes of any question of doubt as to the good faith of the majority of the heirs, and we therefore find no occasion to discuss the effect, if any, of bad faith upon the right of the executor and trustee to have the compensation determined by the Probate Court. The decree of the Probate Court is affirmed. So ordered.