In the Matter of the Judicial Settlement of the Account of John J. McCord and Another, as Executors, etc., of Albert McCord, Deceased. John J. McCord and Another, as Executors, etc., of Albert McCord, Deceased, Respondents; Almira Dusenberry, Appellant

In the Matter of the Judicial Settlement of the Account of John J. McCord and Another, as Executors, etc., of Albert McCord, Deceased. John J. McCord and Another, as Executors, etc., of Albert McCord, Deceased, Respondents; Almira Dusenberry, Appellant. Executors and administrators — may be .compensated for services rendered in the charge of real property outside of their'' duties—estoppel. An agreement, allowing to an executor compensation for Ms services as executor, in excess of Ms commissions, cannot be enforced; but, if the executor performs services outside of Ms official duties, he may be allowed compensation, and an agreement to give Mm such additional compensation is valid. Upon an appeal by a legatee under the will of Albert McCord from a decree over- . ruling her objections to the account of his executors, it appeared that after the executors had qualified one of them procured to be signed by the. widow and heirs an agreement by which they promised' to pay Mm thirteen dollars per " week, until other arrangements should be made, for taking charge, cleaning and making repairs to two houses which had belonged to the testator; that under this. agreement he rendered services for nine years, not only collecting the rents, but remaining at the property during the business hours of every day, and doing the cleaning, kalsomining, repairing, painting and all repairs, with the exception of the plumbing and plastering, and that this consumed his whole time. Held, that the services rendered were separate and distinct from his duties as executor, and that the charge made for them was fair and should be allowed; That as the contestant had received the benefit of the services and had taken her share of the income during the entire period, and receipted therefor without objection, it would be inequitable to allow her to repudiate the agreement at this time. Appeal by Almira Dusenberry, one of the legatees named in the last will and testament of Albert McCord, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of May, 1895, directing that the supplemental objections filed by said appellant to the executors’ account should be disallowed, and overruling the same.- Albert McCord, the testator, died in 1886, possessed of personal property and seized of two houses, and in and by his will, after payment of the debts and a legacy, he bequeathed his personal estate to his five children in equal shares, gave to his wife one-tliird of the net rents of the real estate, and to his five children the remaining two-thirds, to be “ collected and paid over to my said five children by my said executors during the life of my said wife.” The said will further provides and directs that “ immediately, after the death of my said wife, or as soon as my executors shall deem it most expedient, said property to be sold,” and the proceeds divided among said five children. The will was admitted to probate and letters testamentary were granted to John J. McCord and Albert McCord, Jr., the accounting executors herein. After they had qualified and entered upon their official duties, Albert McCord, Jr., one of the executors, prepared and presented to and procured to be signed by the widow and heirs the following paper: “ We, the undersigned, heirs to the estate of Albert McCord, Sr., deceased, do, hereby agree to pay Albert McCord, Jr., the sum of thirteen dollars per week' until other arrangements may be made, for taking charge, cleaning and doing such repairs to the property as are necessary.” The executors were alloived full commissions, and in their accounts they credit themselves with weekly payments of thirteen dollars made pursuant to such agreement, which was objected to by Almira Dusenbm-y, one of the. children of the testator, who had signed the agreement, which objection, however, was overruled, and the credit allowed. This presents the question upon this appeal. W. G. Beecher, for the appellant. Fra/nlt, L. Foung, for the respondents. . [MAJORITY — O’Brien, J.:] O’Brien, J.: It is insisted that the services for which Albert McCord, Jr., claimed compensation outside of his commissions were only those which his official duty.imposed upon him, and the rule is invoked that an agreement allowing any other or greater compensation for such services, however meritorious, than the amount fixed by law, cannot be enforced. While this rule is settled and firmly supported by authority, .it is equally well settled that if services are performed by an executor, outside of his official duties, he may be allowed compensation therefor, and that an agreement to that effect, which is just and fair, will be enforced. There is, therefore, no trouble about the law, but the question in each case will reduce itself to one of fact as to whether the services rendered, and for which compensation is claimed, were those which the executor was bound to render in his official capacity as executor, or were those'which were outside of his official duties. . In this case it. appears that the executor, during the lifetime of the testator, his father, was engaged at the same rate of compensation in collecting the rents and in cleaning and doing such repairs to the property as he was able. The agreement provides that he should continue to render similar services to the estate. It is no doubt within the official duty of an executor generally to take charge of the property and to collect the rents; and where such services alone are rendered, he could not recover more than the compensation allowed by law to executors. Here, however, the evidence shows that he did more, and in addition to taking charge of the property and collecting the rents, that he devoted his time daily to the care of the property, and did the cleaning, kalsomining and repairing and painting and all the repairs, with the exception of plumbing work and some plastering, and that this consumed his ' whole time; the testimony being that he went to the property every day about nine o’clock, and continued there until five in the afternoon. We think that the extra services thus, rendered were outside of his official duties, were not executorial, and were such, as the parties could legally enter into a contract with him to pay for. So viewed, we think that the agreement and the rate of compensation were fair and just, and after he has thus devoted his time to rendering such services for nine years under an agreement with the one who now objects, that it would be inequitable to deprive him of the compensation which she expressly agreed he should receive. Stress is placed upon the finding of the learned surrogate, made at the request of this appellant, “ that the services rendered * * * consisted in the taking charge of the two houses, renting of the same and the collecting of the rents thereof.” It will not do, however, to have resort to a single isolated finding, because when we come to the decision in this case as made by the surrogate, and examine the testimony upon which it is based, we find the facts in regard to the character of the work performed to be as we have detailed. Our conclusion, therefore, is that the agreement for extra compensation being for services entirely separate and distinct from the duties imposed upon an executor by virtue of his office, was just, fair and valid, and the contestant having had the benefit of the services so rendered, and having received without objection her share of the income during the entire period, receipting therefor, it would be inequitable to permit her now to repudiate her agreement. "We think the decree was right, and should be affirmed, with" costs and disbursements against the contestant. Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred. Decree affirmed, with costs and disbursements against the contestant.