
    
      In re Taft’s Estate.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Executors and Administrators—Compensation—Partnership.
    Where testator, by his will, provides for continuing his business after death by his executors, one of whom is a copartner, in conjunction with another surviving partner, neither executors nor surviving partner will be allowed compensation for carrying on the same; no provision having been made therefor in the will.
    Appeal from surrogate’s court, Monroe county.
    This was a claim made by Albert S. Taft and William Main, surviving partners of Gilbert T. Taft, against William Tai't and Lillie Taft, legatees of Gilbert T. Taft, for compensation for services rendered in carrying on the business after the testator’s death. The claim was disallowed, and the claimants appealed.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      C. A. Keeler, for appellants. H. W. Morris, for respondents.
   Dwight, J.

The estate left by the testator consisted principally of his one-third interest in a patent medicine business, 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 executots,) 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 with the other surviving partner, until the son William should become of age.

The questions presented by this appeal relate to the disallowance by the surrogate, in whole or in part, of two items of credit claimed by the executors. One of them was an item of $950, for compensation to themselves, or to the executor Albert S. Taft and the other surviving partner, for their trouble in carrying on the business after the death of the testator. This item was properly disallowed. Surviving partners are not allowed compensation for their own services in the conduct of the business, as against the share of a deceased partner. Pars. Partn. 230; Caldwell v. Leiber, 7 Paige, 483,495. Nor are executors entitled to ariy 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. Pr. (N. S.) 361. See, also, In re Hayden's Estate, (opinion of Barker, P. J„) 7 N. Y. Supp. 313. The item of $950 is not in terms contained in the account rendered by the executors, but it is involved therein as follows: The executors charge themselves with the sum of $1,600.09, as one-tliird of the net profits of the business; and the executor Albert S. Taft testified that in arriving 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 allowance for performing the labor of taking care of the business.” Aside from a 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 accordance 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 those 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 Civil Proc. § 2734. We find no error in the disposition of the case by the surrogate. The decree should be affirmed. All concur. Decree affirmed, with costs to the contestants, payable out of the estate.  