Opinion
No. 30776.
November 13, 1933.
1. EXECUTORS AND ADMINISTRATORS. Executor accepting appointment under will which fixes executor's compensation is entitled to no other compensation ( Code 1930, section 1740).
Where will thus fixes executor's compensation, Code 1930, section 1740, which provides that court shall allow to executor or administrator as compensation not less that one nor more than seven per cent. on amount of estate administered, does not apply.
2. EXECUTORS AND ADMINISTRATORS. Where will appointed same corporation as executor and trustee, directed that "executor" be paid certain percentage of proceeds from sale of realty, and, for its services as "trustee," certain percentage of trust fund, and used words "executor" and "trustee" interchangeably, corporation held not entitled to executor's statutory compensation as to personal estate administered ( Code 1930, section 1740).
Under such circumstances, executor was entitled only to compensation fixed by will, as against contention that, while will fixed compensation to be paid executor in regard to real estate, and also fixed trustee's compensation in reference to personal property, will was silent about executor's compensation as to personal estate administered.
3. EXECUTORS AND ADMINISTRATORS.
"Executor" is person appointed in will to execute terms of will.
APPEAL from Chancery Court of Warren County.
Vollor Teller, of Vicksburg, for appellant.
The intention of the testator is clearly and unambiguously expressed in item five and that it should govern and be given legal effect is an essential element to enforcing the law of this state. The language used is specific.
28 R.C.L. 218; Currie v. Murphy, 35 Miss. 473; Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Dealy et al. v. Keatts et al., 128 So. 268, 157 Miss. 412.
The will must be construed as made. Courts have no authority to either add to, or take from, a will, except surplusage in the language of a will may be disregarded, if necessary, to get the intention of the testator.
Keeley v. Adams, 115 So. 344, 149 Miss. 201.
For its services, as such person, in such capacity of "Executor," the appellee was to receive the compensation stipulated in Mr. Crutcher's will.
The language used in item five unambiguously limits and fixes the fee to be paid the appellee, both as executor and trustee.
Mooers et al. v. Shoemaker, 279 Fed. 1008.
The provision limiting executor's fee is valid.
The law is settled in other jurisdictions, including decision by the supreme court of the United States, that a statutory provision does not control when the testator has expressly fixed the executor's fee by his will.
24 C.J. 989; Washington Loan Trust Co. v. Convention of Protestant Episcopal Church et al., 54 App. D.C. 14, 293 Fed. 833, 34 A.L.R. 913; Johnson v. Kimball, 172 Mass. 398, 400, 401, 52 N.E. 386, 34 A.L.R. 918.
The relation, being a fiduciary one, all courts recognizing the power in the testator to select his executor, then there is no reason why the testator should not also be allowed to fix his compensation.
Statutes in such cases are made to supplement a deficiency in the common law not allowing compensation to an executor, and such statute must be construed to apply only where the will is silent as to compensation.
Key No. 490 under title "Executors and Administrators," American Decennial Digest System; Thomas v. Thomas, 97 Miss. 697, 53 So. 630.
Robbins Smith, of Vicksburg, for appellee.
The executor contends that the will is silent on the commissions to which it is entitled other than the fixed commissions set out in the will on the real estate when sold.
Nothing in the will discloses the thought which prompted the testator to fix the commissions at two and one-half (2 1/2) per cent of the money received from the sale of the real estate. The testator, being charged with a knowledge of the law, and being desirous of remunerating the executor, fixed the commission to which the executor is entitled in the sale of the real estate. In the absence of specific directions in a will, normally the executor does not administer upon the real estate. It would, therefore, appear that the purpose of the testator, in fixing a commission on the sale of the real estate, was to place, beyond question, not only his desire that his executor should be paid a commission, but he further fixed the commission to which the executor would be entitled in the sale of such real estate.
Section 1643, Mississippi Code of 1930; Section 1740, Mississippi Code of 1930.
In the exercise of the discretion vested by law in the chancellor, the commissions to which an executor is entitled will not be reviewed by the supreme court, except in cases of manifest and flagrant abuse.
Power v. Burrus, 35 Miss. 605.
The allowance to an executor is made not only for the purpose of compensating the executor for the labor and trouble in administering the estate, but also as a reward for the responsibility incurred and the fidelity in the discharge of the trust imposed.
Power v. Burrus, 35 Miss. 605; Spratt v. Baldwin, 33 Miss. 581; Satterwhite v. Littlefield, 13 S. M. 302; Carrollton v. North Carrollton, 109 Miss. 494; 7 Words Phrases (1 Ser.), p. 6463.
On the 7th day of December, 1929, Philip Crutcher, a resident of Vicksburg, made his last will, by which he gave complete and elaborate directions for the disposal and management of his estate, both real and personal. No detail seems to have been omitted. After directing that his real estate shall be sold by his executor and the proceeds distributed to his next of kin, he gave all his personal property, consisting of bonds, stocks, and all other securities, together with all money in banks or elsewhere, to his executor in trust for the Vicksburg Public Library. He directed that the principal of the funds as invested by him should remain intact, until changes in the form of the investments were deemed necessary by his executor, and that the interest or income derived from the investments should be paid annually by his executor as trustee to the said library. The trust is a continuing one, and the duties of the executor in respect thereto are of a continuing nature for the years to come.
Item 5 of the will is in the following words and figures: "I hereby nominate, constitute and appoint the National City Savings Bank Trust Company a corporation domiciled at Vicksburg, Warren county, Mississippi, executor of this my last will and testament as well as trustee of the trust fund hereinbefore created; and for its services as executor the said National City Savings Bank and Trust Company shall be paid two and one-half (2 1/2) per cent of the money received from the sale of the real estate; and for its services as trustee the said National City Savings Bank and Trust Company shall receive one-half (1/2) of one (1) per cent of the trust fund hereby and herein created each year and one-half (1/2) of one (1) per cent of the interest realized on the funds invested."
A few days after the death of Mr. Crutcher, which occurred on October 14, 1932, appellee bank and trust company, which had by a legal merger become the successor of the National City Savings Bank Trust Company, exhibited the said will to the chancery court, prayed the probate thereof, and petitioned therewith that appellee be appointed executor; the petition reciting, among other matters, "that petitioner desiring to fulfill the wishes of the testator, and that his last will and testament may in all things be executed according to the true intent and meaning thereof, is willing to accept and undertake the trust and office confided in petitioner."
Appellee was appointed executor in accordance with the prayer of its petition, and thereafter on March 30, 1933, filed what it denominated as its first and final account, showing disbursements consisting of two thousand five hundred seventy-one dollars and fifteen cents, which were of items of current household debts of the deceased and of the costs of the funeral and of a monument. The account showed cash receipts of three thousand five hundred seventy-two dollars and twenty-four cents, and therewith was annexed a list or inventory of stocks and bonds of the face value of approximately fifty thousand dollars, and of an appraised market value of forty-two thousand one hundred thirteen dollars and sixteen cents. There was also some miscellaneous personal property of the appraised value of one thousand four hundred sixty-four dollars and twenty-five cents. The executor petitioned with its said so-called final account that it be allowed "its proper fees as such executor," and on the hearing the court ordered that the executor be allowed a fee or compensation of two thousand three hundred twenty-five dollars, based upon an approximate calculation of five per cent on the personal property. This allowance was made over the objection of the library, and the library prosecutes this appeal to have the allowance reviewed.
The general rule, supported by nearly all the authorities, is that, when an executor accepts appointment under a will which fixes the compensation which the executor is to receive, the executor must abide by the compensation provided in the will, and is entitled to no other compensation than the will allows. This seems to have been assumed as the correct rule without discussion in Thomas v. Thomas, 97 Miss. 697, 717, 53 So. 630, and we now expressly so hold. See the authorities grouped in the annotations Washington Loan Trust Co. v. Convention of P.E. Church, 54 App. D.C. 14, 293 Fed. 833, 34 A.L.R. 913, and 24 C.J., pp. 989, 990.
The argument by appellee in support of the allowance is, first, that section 1740, Code 1930, is mandatory in its terms that the court shall allow to an executor or administrator as compensation not less than one or more than seven per centum on the amount of the estate administered. The answer to that contention is that under the common law an executor was not allowed compensation; the statute in this state was designed to supply that deficiency and to provide compensation where none is fixed in the will; but, where there is a valid provision in the will providing for the compensation, the statute does not apply.
The second ground of appellee's argument is that, while the will fixes the compensation to be paid the executor in regard to the real estate, and also fixes the trustee's compensation in reference to the personal property, the will is silent about the executor's compensation as to the personal estate administered. Appellee seeks, therefore, to draw some distinction between appellee as trustee under the will and as executor thereof. The will, in directing the management of the investments of the personal estate throughout the years to come, uses, in the items so directing, the terms "executor" and "trustee" interchangeably; the executor is the trustee and the trustee is the executor. An executor is the person who is appointed by a testator in his last will and testament to execute and carry into effect the terms of the will. Ricks v. Johnson, 134 Miss. 676, 689, 99 So. 142. The appellee bank was nominated as executor in the will, and is the particular person and the only person who was directed to execute and carry out the terms thereof throughout all the years to come, and it is therefore immaterial that the executor is sometimes spoken of as trustee in the will, particularly so when at various points in the will these terms are used interchangeably. The will, out of caution, expressly provided for the filing of reports in the chancery court as required by law, which means that the executor shall continue to report so long as the trust estate exists. This means that, under the annual payments to the executor of the percentages fixed in the will, the executor will receive in the aggregate as the years go by more than the percentages mentioned in the statute, but no other compensation than that provided in the will, and at the times therein mentioned, shall be allowed the executor.
Reversed and decree here for appellant.