Ellington v. . Durfey

72 S.E. 194, 156 N.C. 253, 1911 N.C. LEXIS 167

• Court: Supreme Court of North Carolina
• Decided: October 11, 1911
• Status: Published

Opinion

Beown, J.

The facts set out in the case substantially show that Mrs. Tucker died 15 December, 1909, leaving a will and appointing Thomas B. Womack, her legal adviser, and the defendant as executors. Judge Womack and his coexeeutor transacted the business of the estate up to the death of the former, 18 February, 1910.

.The question presented is the just compensation due the estate of plaintiff’s testator.

It is stated in the record that during the time he acted as executor the receipts of the estate amounted to $46,920.22, not including sales of any real estate, and the disbursements $7,347.66.

The question presented is one of first impression, and we are without precedent or authority to guide us.

We agree with, his Honor below, that the plaintiff’s intestate is not entitled to the $2,000, and as the time when it was to be paid is not fixed by the will, it is impossible to prorate it.

The plaintiff’s intestate was prevented by death from fully discharging the duties as executor, for which the $2,000 was plainly intended as compensation for all services to be performed by the executor in addition to the' commissions on income fixed by the will.

We think, however, that plaintiff’s intestate failed to perform all the services, not by his own fault, but because of his untimely death. Consequently we are of opinion that his services should be measured by the just and reasonable rule of quantum meruit, and that should be gauged by the compensation allowed by law, had the will fixed no compensation.

We are of opinion that plaintiff’s intestate is entitled to one-half of the commissions, not exceeding 5 per cent, upon the sum of $46,920.22, the receipts of the estate, and not exceeding 5 per cent upon the sum of $7,347.66 disbursements.

This of course will not apply to the Executor Durfey, who is living and discharging the duties of sole executor. His compensation will be adjusted by the terms of the will.

The Superior Court will fix the percentage of commissions and allow plaintiff’s intestate one-half of the whole.

Reversed.