
    Harker v. Smith.
    A testator provided in his will as follows: “I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of fifteen hundred dollars per year, to be paid to him by my executor in monthly installments.”
    
      Held: 1. That this provision of the will in favor of Harker was not a legacy, but a testamentary provision requesting his services in the settlement of the estate and fixing the relation between him and the executors, in case he entered upon the performance of the services and the same were accepted by them.
    2. That the liability of the estate for the discharge of Harker was the . same as if he had been wrongfully discharged from such service when in the performance of a contract with the executors, to serve upon the same terms and conditions.
    Enron to the District Court of Hamilton County.
    This action was brought originally in the superior court of Cincinnati by the plaintiff in error against the defendant in error, as executor of the last will of John Bates deceased, to enforce whatever rights were secured to him under item thirteen of the will. Item thirteen is as follows:
    “ I hereby request and desire William J. Harker, who has attended to my business, keeping my books and accounts, to continue to take charge of and keep the accounts of my estate for my executor and trustee, and in any way he can to assist in the settlement of my estate, so long as his services may be necessary, and for such services I allow him a salary of fifteen hundred dollars per year, to be paid to him by my executor in monthly installments.”
    The plaintiff averred in his petition that the will was admitted to probate July 30th, 1870, and that he thereupon took charge of the books of the estate and continued to keep the accounts of the estate until April 18th, 1874, when the defendant dismissed and discharged him. That after said discharge he at various times demanded of the defendant the privilege of keeping the books, and that from the discharge to the time of filing his petition he was willing and ready to discharge his duties under item thirteen of the will, which the defendant refused to permit him to do, although he says such a bookkeeper was necessary to said executor during all of said time and at the time of filing his petition; and asked to recover at the rate of fifteen hundred dollars per year, payable monthly from September 30th, 1874, to March 4th, 1880, the time of trial.
    The defendant for defense alleged that he discharged the plaintiff for the reason that the services of a bookkeeper were no longer necessary to said estate; and also that the plaintiff had failed in divers ways to properly discharge his duties as bookkeeper, and alleged also two other defenses.
    The result of the trial was a verdict and judgment for the plaintiff for $7,391.10. This judgment was reversed by the district court. And the present proceeding is to reverse the judgment of reversal.
    
      Cowan & Ferris and Hoadly, Johnson & Colston, for plaintiff in error.
    
      Jordan, Jordan & Williams, for defendant in error.
   McCauley, J.

The liability of. the executor to the plaintiff in error depends mainly upon the question, whether or not the provisions of item thirteen of the will gives him a conditional legacy.

A conditional legacy is defined to be “ a bequest whose existence depends upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.” 2 Williams’ Executors, 1258; 2 Roper on' Legacies, 283. The effect to be given to item thirteen of the will is to be determined by the manifest purpose of the testator in making the provision, rather than by giving force and consequence to any particular expression used in it. The evident purpose of the testator was not to give anything either directly or upon condition to Harker; but to appoint him to assist the executor and trustee of the will to perform certain duties to the estate at a stated salary. While the testator says, “ for such services I allow him a salary of fifteen hundred dollars per year,” that expression is used in reference to his services to be performed for the estate. If Harker had refused or become unable from any cause to perform the services, he could not have earned the salary. It was to be paid for the services. It was money to be earned, and if not earned, not to be paid. It is urged that it is a legacy upon condition, the condition being that Harker should serve the executor in a specified way. Service in a specified way is the common way of earning a salary, and the money thus earned as the bookkeeper of the executor belonged to' the servant because of the labor he had performed and not because of the provision of the will. The provision that the salary shall be paid in monthly installments, indicates that payments shall not be delayed as legacies are, until the indebtedness of the estate is paid; but be paid as the settlement of the estate progressed and as a part of the expenses of managing the estate.

Looking to -all the provisions of this item of the will we are of the opinion that it does not provide a legacy for Harker, but is a testamentary appointment of a bookkeeper for the executor, at a fixed salary, and for such time as a bookkeeper was necessary in the settlement of tbe estate. The effect of the appointment would be that Harker had the right to the salary, if he tendered performance of the duties of bookkeeper, while a bookkeeper was necessary, to the executor, even though the executor refused to accept his services; and that after the executor had accepted his services, the same relation as to services and salary and discharge would exist between them as if he had been employed by the executor himself, upon the sanie terms and conditions specified in this item of the will.

Harker was to be the bookkeeper of the executor, in matters pertaining to the estate. And any misconduct, or unfaithfulness or incompeteney on his part would justify his discharge the same as if he had been selected and employed by the executor himself. He was acting under the executor and subject to his reasonable- control and direction. The executor was charged with the care and management of the estate, and if the bookkeeper thus employed to assist in its affairs, no longer acted in the interest of the estate, his discharge by the executors was lawful and proper.

If Harker was wrongfully discharged ■ and could have found employment, or did have employment, whatever he realized or could have realized from it, should be deducted from the salary he was prevented from earning, by the discharge.

The superior court seems to have treated the provision of the will as a provision in the nature of a legacy, and held that Harker was entitled to the monthly allowance, if he offered to perform, whether his services were necessary or not, and whether they were valuable or not.

The district court adopted the same view as to the legal effect of the provision of the will, but held further that the superior court had not jurisdiction of the action, because it was an action against an executor to recover á legacy, before the right to recover it had been fixed by a finding of the probate court. If the provision, however, was not a legacy, as we think it was not, the superior court had jurisdiction of it, and in that aspect of the case, it becomes necessary to consider some of the proceedings upon the trial to determine whether the court erred in overruling a motion bythe defendant for a new trial.

The superior court upon the trial instructed the jury, “ that the defendant by his answer admitting that this provision was made, admitting that the plaintiff entered upon the discharge of his duties, and continued to discharge them until the 18th day of April, 1874, avers that he refused any longer to permit him to discharge those duties, first, because it was not necessary to have his services any longer in taking charge of, or keeping the accounts of the estate for said executors and trustees named in said will, or to have him aid in settling the estate. Second, he says that the plaintiff collected and appropriated moneys of the estate, and kept inaccurate accounts and failed properly to discharge his duties under the provisions of the will; that he became disagreeable and unpleasant in his manner and conduct toward this defendant; and that he also failed to obey the orders given him by this defendant, and that by reason thereof and for the reasons aforesaid he discharged him. Third, lie sets forth that the plaintiff entered into a combination with certain persons to defeat the will of John Bates; but as I have already ruled in the course of the trial that would not authorize the defendant to refuse to permit him to discharge the duties and you will not consider that portion of the answer.” This instruction practically withdraws from the consideration of the jury all matters of defense, in an action other than one for the non-payment of a legacy to which the right of the plaintiff was complete beyond all conditions.

The defendant upon the trial requested the court to instruct the jury “ that Mr. Smith, the executor, had a right to discharge Mr. Harker or refuse longer to employ and pay him if he refused to obey his lawful orders, if he was negligent and unskillful in keeping the accounts of the estate, if he absented himself improperly from the place of business, the office, and neglected its duties, for improperly retaining or using money of the estate,” which request was refused by the court and was not given. The refusal to give this instruction prevented the defendant from having proper and pertinent matters of defense considered, and was error. The motion of the defendant for a new trial should have been sustained, not for want of jurisdiction as held by the district court, but for error in overruling the motion of the defendant for a new trial.

Judgment affirmed.  