
    Matter of the Estate of Christian Wick, Deceased.
    (Surrogate’s Court, Oneida County,
    February, 1907.)
    Executors and administrators: Bights and liabilities between representative and estate — Allowances — Counsel fees; Compensation — Particular services, etc.— Services additional to duty as representative — Services-as attorney,-etc.
    An executor will not be allowed extra compensation for his services in serving citations in the proceeding for the probat,e of the will; and where, being a lawyer, he attends to all the business of conducting such proceeding an allowance will not be made to his brother in law, also a lawyer, for such services where the latter went to the surrogate’s office at the executor’s request and “ simply staid until it was over ” the executor thinking there might be some opposition; and where in the defense of a small claim the executor incurred unnecessary and unreasonable expense, his allowance therefor will be limited to the amount of taxable costs and disbursements.
    Accounting by an executor.
    H.. S. Willson (D. F. Searle, of counsel), for petitioner.
    E. 0. Worden, for contestant.
   Sexton, S.

On July 19, 1904, Peter Ammon filed his account as executor of the above estate, and, on October 30, 1906, filed a supplemental final account. December 24, 1906, Gottlieb Blessing, as executor of the estate of Anna M. Wick, widow and only interested person in the estate, filed objections to the following items in said accounts:

Witness fees in Fred Wick case............... $32 00

To executor personally serving notices ‘of appraisal ..........................-......... 10 00

To executor personally serving citations......-... 20 00

To H. S. Willson on probate of will.......... 10 00

To H. S. Willson on probate of .will............ 15 00

To John E. Wilson in-Ered Wick case.........■ 25- 00

To H.- S. Willson in Fred Wick case........... 150 00

Judgment against Eose Wick for costs, $76.93, and judgment against Fred Wick for costs, $169.53, should not be credited to the executor without proof that they are uncollectible.

Upon the trial, objection to the first item, witness fees, was withdrawn and the executor is hereby credited with the same. The second item of ten dollars for posting notices of appraisal by consent is disallowed.

The third item is one of twenty dollars, claimed by the executor for having himself served citations. In connection with this item the question arises: Can an executor claim an allowance for “ extra services ” rendered by himself in the conduct of the affairs of an estate, a compensation beyond the commissions allowed by statute? This was a service that the executor was not obliged to render. It could have been delegated to another at the expense of the estate; but he, having chosen to render the services himself, must look to his commissions for remuneration. Any' other rule would be obviously dangerous. I am aware of a long line of cases where executors have been allowed extra compensation for special services not executorial; which specially benefited and enhanced the estate, but do not regard the serving of a paper by an executor within the" rule laid down. It has been held that, where an attorney as an executor has rendered services to the estate, no allowance can be made to him beyond his commissions. The item of twenty dollars is disallowed. Clinch v. Eckford, 8 Paige, 412; Matter of Howard, 3 Misc. Rep. 170; Collier v. Munn, 41 N. Y. 143; Lent v. Howard, 89 id. 169; Smith v. City of Albany61 id. 444.

The two items of ten dollars and fifteen dollars, respectively, paid attorney H. S. Willson, for alleged services on probate of the will, are disallowed. The executor is an attorney, and prepared all of the papers and proved the will. For some undisclosed reason Mr. H. S.Willson, an attorney and a brother-in-law of the executor, sat in court for about an hour on two occasions in an ex parte matter, so carelessly conducted that a supplemental citation was necessary, for which the executor paid him twenty-five dollars, and now seeks reimbursement out of the estate. In the first account filed by the executor, he credits himself with ten dollars; and, in the supplemental account, he credits himself with fifteen dollars more for work completed at the time the first account was filed, which two items make up the twenty-five dollars involved. Mr. Willson testified, “ I was there at Mr. Ammon’s request, and he prepared all the papers himself, and I simply staid there until it was over; he didn’t know but that there would be some opposition.” Upon these facts I conclude that said services, if in fact any were rendered by Mr. Willson, have not been shown to have been necessary or beneficial to the estate. The executor, having done the work himself, is not entitled to any compensation therefor beyond his commissions; hence, he must not be allowed by strategy to circumvent the law. Matter of Holland Trust Co., 24 N. Y. Supp. 850, and cases cited.

It is urged that the item of twenty-five dollars paid to John F. Wilson, and seventy-five dollars paid to H. S. Will-son, and seventy-five dollars paid to D. F. Searle, as attorneys, making a total of one hundred and seventy-five dollars, exclusive of disbursements by the executor, for their services in an action in the Supreme Court, brought by Fred Wick, to recover one hundred and twenty-two dollars claimed for services against the deceased, is too much and should be reduced to sixty-five dollars, the taxable costs. Section 2730 of the Code of Civil Procedure provides that, “ in all cases such allowance must be made for their necessary expenses (executors and administrators), actually paid by them as appears just and reasonable.” Christian Wick, whose estate is here involved, died in May, 1903. His will was probated in June, 1903. Peter Ammon, named as executor therein, qualified and is now acting. Fred Wick, a nephew of the deceased, April 21, 1904, presented to the executor a verified claim against said estate for “ doing work and chores through the winter, from April 1, ’01, to April 1, ’02, $50.00, and doing work, chores and farm work from April 1, ’02, to April 1, ’03, $72.00, making a total of $122.00.” This claim was rejected, and on July 19, 1904, the executor filed his final account. July 31, 1904, claimant in writing offered to have the same determined by the surrogate, under section 1822 of the Code. This was refused by the executor. September 13, 1904, claimant commenced an action in Supreme Court. Issue was joined and the case noticed for trial for November 7, 1904, at Rome, N. Y. In some manner not disclosed by the evidence before me, the trial of the case was begun before Hr. O. P. Backus, as referee, on June 1, 1905, and thereafter, in October, 1906, he rendered his decision dismissing the complaint with costs. His fees were paid in the amount of seventy dollars.

Attorney John F. Wilson did work covering seventy-four of the eighty-eight pages of the referee’s report, and had paid to him for his services twenty-five dollars. H. S. Willson and D. F. Searle did work covering the remaining fourteen pages of the report, and Searle summed up. H. S. Willson was connected with the case from the beginning. One hundred and fifty dollars was paid them, which was divided. The summing up took two hours. The eighty-eight pages of the referee’s report, if written in ordinary long-hand, would cover about forty pages, and représente not to exceed four days’ work.

In the estate there were $917.50 in the bank and real estate worth about $600. The plaintiff prosecuted his case with one attorney, and the executor, himself an attorney, had the help of three different attorneys in the defense of the action.

On the facts presented I do not think the executor wisely and frugally managed the estate. One of the attorneys testified, “ Since 1882 I tried only two cases alone in courts of record. I don’t like the practice of trying cases.” It was bad management to employ a man to try a case, to whom trials were so distasteful that the executor felt called upon to employ two other lawyers to help him. The plaintiff, having offered to let the surrogate try his claim, much would have been saved the estate had the executor consented. When the case was on the Supreme Court calendar, if it had been tried there, referee’s fees of $70 could have been saved. Hr. Searle testified that had he been employed in the first place he could have carried it through alone. Attorney HoHahon, witness for the executor, testified that likely there were perhaps a dozen attorneys in Eome, any one of whom could have done the same thing. He also said it would not he good business to spend $175 on attorneys to defend a claim of $122. The total amount of costs and disbursements incurred in the defense of this claim is $313.09, which seems entirely out of proportion to the amount involved and the size of the estate, which is about $1,500. This executor very likely proceeded upon the theory, quite prevalent, that any controverted question in connection with an estate can be safely litigated, provided he acts.in good faith and under advice of counsel. This is not the rule. Estates cannot be frittered away in litigations involving trifling amounts. Any other rule would enable a conscienceless executor to practically distribute the property of the dead among his friends at the bar. An executor is required by law to exercise a reasonable measure of intelligence, and such ordinary discretion and judgment as men usually exercise in the management of their own affairs. Matter of Huntley, 13 Misc. Rep. 375, and cases cited.

I conclude and find that it was negligent management of this estate for the executor, upon the facts, to have employed an attorney unable to conduct the defense of the action; also to have refused to permit the surrogate to determine this claim, or at least to have declined to do so; also to have taken the case from the Supreme Court calendar, where it might have been tried before a jury without the expense of seventy dollars paid the referee.

There is evidence before me that the taxable costs, amounting to sixty-five dollars, are fair compensation for the work of the* defense of this action, and the same are hereby allowed the executor in full of attorneys' compensation in the Ered Wick action. These do not, however, include disbursements; they may be added. The balance of the claim for amount paid by executor to attorneys in the Ered Wick action is disallowed.

All admit, what is well known, that the value of legal services is, to a considerable extent, a matter of opinion; but, in arriving at the same, various well-defined elements must be considered, such as, in this case, the amount involved in the estate, the character and amount of the work done, the time occupied in its performance; the result, the standing and reputation of the attorneys performing the services; and the courts have uniformly refused to limit attorneys’ fees to specified and detailed hills of particulars, with 'fixed amount for each item, as in case of goods sold or manual services rendered. Matter of Sewell, 32 Mise. Rep. 604, and cases cited.

The claim of Dr. E. C. Reams should he reduced from thirty-three dollars to thirty-two dollars.

The judgments for costs are properly set out in the final account.

Decreed accordingly.  