In the Matter of the Final Judicial Settlement of the Accounts of Margaret M. Case, as Administratrix, etc., of Joseph W. Case, Deceased, Appellant. Colonial Assurance Company and Others, Respondents

In the Matter of the Final Judicial Settlement of the Accounts of Margaret M. Case, as Administratrix, etc., of Joseph W. Case, Deceased, Appellant. Colonial Assurance Company and Others, Respondents. Third Department, November 13, 1907. Personal property — goodwill defined—when administrator not liable to account for good will. The good will of a business as property is intangible, but must always attach to and rest upon some principal and tangible thing, such as an established business. An administratrix of a deceased insurance agent is not required to account for the good will of his insurance business, if his agencies had expired before his death, for whatever benefit he acquired in his business, it did not survive the termination of his contract with the insurance company. Appeal by Margaret M. Case, as administratrix, etc., of Joseph W. Case, deceased, from a decree of the Surrogate’s Court of the county of Fulton, entered in said- Surrogate’s Court on the 1st day of August, 1906, settling her accounts as such administratrix. This proceeding was commenced by the administratrix for the judicial settlement of _ her account. Several creditors filed objections to the account and the issue was referred to a referee appointed by the surrogate to examine the account and to hear and determine the questions arising upon the settlement thereof. The referee made a report, which was confirmed by the surrogate, and a decree was entered in accordance therewith. It appeared upon the trial and the surrogate found: “ That Joseph W. Case, in his lifetime, and in about the year. 1898, went into business with Purdy F. Case, in the city of Johnstown, ¡N". Y., as insurance agents, under the firm name of Casé & Co., and continued in business with Purdy F. Case until about 1901, and Joseph W. Casé, the decedent, continued in business, under the name of Case & Co., down to the time of his death, December 13th, 1902. * * * That on the 1st day of December, 1902, all the insurance companies which decedent had represented, except one, had withdrawn their business from him ; * *' * that at the time of decedent’s death all the companies which he ever represented had withdrawn their business from him; ” “ that his office was in the Collins & Hanson building, in the city of Johnstown, Y. Y., and that he had no lease of the building or office; * * * that the name Case & Co. constituted good will of decedent’s business and -was an asset which passed to said administratrix upon her appointment as such.” Ha also found that the administratrix had neglected to sell apd dispose of the insurance business or the renewal or expiration book, and had failed to account for the same ; that the fair market value of the insurance business at the time of the death of decedent was the sum of $800, and the administratrix was chargeable with that sum. . Clarence. W. Smith, for the appellant. Borden D. Smith, for the respondents. [MAJORITY — Sewell, J.:] Sewell, J.: The claim of the respondents is that notwithstanding every-contract by which the decedent was employed as an agent by the insurance companies to solicit insurance and collect premiums -had terminated some time before his death, and he could, therefore, claim no benefit or advantage from the business done or the way in which it had been conducted, the deceased left the good will of an insurance business, which was subject to sale and purchase, in the same way and with like- effect a§ other assets which it was the duty of the. administratrix to sell It is my opinion that-.this claim is unfounded.' The good will of a business, as property,-is intangible and must always attach to and rest upon some principal and tangible thing, such as an established business.- (20 Cyc. 1216.) It'is an advantage or benefit that has been acquired by and belongs to the proprietors of an existing business. (Boon v. Moss, 70 N. Y. 465.) It is unnecessary to inquire whether an agent acting under a contract for personal services, which provides that he shall be paid a commission upon the amount of premiums received on the policies procured by him, can acquire a good will of the business. The proper conclusion in this case must be derived from the fact found in the decision of this case, as to-which there is no-dispute or controversy, that the deceased had no insurance business or other enterprise at the time of his.death, to which a good will could attach as an incident. From this fact it necessarily follows that whatever benefit or advantage the deceased acquired in the business in which he was employed by the insurance companies, did not survive the termination of his contract with them. The decree should, therefore-, be modified by striking therefrom the item of $800 charged against the administratrix as the value of the insurance business, also the provision requiring her to pay $100 referee fees, $.70, the allowance to the stenographer, and the allowance to the contesting creditors, amounting in the aggregate to the sum of $450, and as so modified affirmed, with costs of this appeal to the appellant. All concurred. Decree modified as per opinion, and as modified affirmed, with costs of this appeal to appellant.