Mooers v. Shoemaker

279 F. 1008, 51 App. D.C. 370, 1922 U.S. App. LEXIS 1658

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1922
• Docket: No. 3514
• Status: Published

Opinion

VAN ORSDEL, Associate Justice.

Pierce Shoemaker died in this District on May 20, 1891, leaving a will by the terms of which he appointed his two sons, Louis P. Shoemaker and Francis D. Shoemaker, as executors and trustees, with authority to sell and convert his estate into cash, providing that “as compensation for their work and services in making such sale or sales” they should deduct a sum equal to 3 per centum from the gross amount thereof. It was also provided that the executors should have the management and control of the properly with a commission of 5 per centum of the gross amount collected as rental thereon, as compensation for their services. In 1896 Francis D. Shoemaker was removed as executor, and Louis P. Shoemaker was substituted as sole executor under the will.

In 1911 the executor as trustee sold certain real estate belonging to the estate, upon which one Digges claimed a commission, as agent, for negotiating the sale in the sum of 86,332.50, with interest. Upon refusal of the trustee to nay the claim, Digges brought suit and recovered a judgment thereon (Shoemaker v. Digges, 46 App. D. C. 206), which the trustee was compelled to pay. Subsequently Louis P. Shoemaker died, and defendants, Mooers and Newman, were substituted as executors and trustees. This action is by Abner C. P. Shoemaker, executor of Louis P- Shoemaker, deceased, to recover the amount he was compelled to pay Digges as a result of the suit and judgment thereon.

Petitioner, in his bill, avers that the services for which Digges obtained judgment against Louis P. Shoemaker, were rendered for him as trustee, and that the estate of Louis P. Shoemaker is entitled to reimbursement out of the trust estate of Pierce Shoemaker. It is further averred that the account of the substituted trustees, defendants herein, was referred to the auditor to state an account for the purpose oi distributing the balance of the proceeds derived from the sale of the real estate out of which Digges claimed and obtained the commission. The auditor in his report reserved a fund, subject to the order of the court, sufficient in amount to reimburse the estate of Louis P. Shoemaker for the commission which he was compelled to pay Digges. Petitioner prays that the court pass an order directing the substituted trustees to—

“j ay to the petitioner, as executor under the will of said Louis P. Shoemaker, deceased, the sum of $.8,441.24, being the amount paid out in settlement of the Digges judgment.”

From a decree in favor of the petitioner, this appeal was taken.

[1] The sole question is to determine, from the will itself, the intention of the testator in placing a limitation upon the amount of compensation which should be paid his executors in the event of the sale o::' property belonging to the estate. After devising his estate in trust to his executors, with instructions to convert the property into cash, and to distribute the proceeds as directed in the will, he specifically provides that—

“Upon full compliance being made with the terms of any such sale or sales thereupon and as soon thereafter as conveniently may be done, to distribute and divide the proceeds thereof, after deducting therefrom a sum equal to tlree per centum of the gross amount of such sale or sales, which sum I hereby give and allow to my executors, or to the survivor of them, as compensation for their or his services in making such sale or sales.”

This, we think,.clearly implies that it shall be full compensation for making the sale, and excludes the payment of further commissions from the funds of the estate. The mere fact that the term “commission” is used indicates the intention of the testator to place a limitation upon the amount of compensation the executors should be paid. This is emphasized by the further provision in the will, limiting the amount of compensation the executors should receive for the management and control of the property to a commission of 5 per centum of the rentals collected by them.

[2] On the other hand, the executors accepted the trust with full knowledge of' this express provision of the will. The substituted executor, who made the sale in question, was a real estate broker of wide ■experience, and must be charged with knowledge of the custom of ■brokers in transactions of this character. The executor in the sale of the property acted rather in the capacity of a broker employed for a fixed commission than as a trustee with discretion in the matter of incurring expenses, not expressly limited by the will. No rule is better established than that a broker, employed upon a fixed commission, cannot engage the assistance of another broker and impose an additional commission upon his principal, without express or implied authority from the principal.

[3] In the present case there is nothing upon which to place such an implication, whether we treat the executor in the legal capacity of trustee or broker. In the Digges Case, he not only denied liability, but denied that he had employed him. The verdict was returned, and the judgment sustained, upon the theory that the trustee had been negligent in failing to inform Digges that he and the purchaser had been negotiating for the sale" of the property long prior to the time Digges alleged he came into the transaction. In that case this court said:

“The jury found that the purchaser was not procured by the defendant, but by plaintiff, who stimulated him to the purchase and was the procuring cause of his offer. They found that defendant did not notify plaintiff of any previous negotiations with Gordon, nor reserve the right to effect a sale to Gordon himself. Plaintiff was left to believe that he had found the purchaser.” 46 App. D. C. 214.

Indeed, the whole case was disposed of upon the relation of principal and broker. The idea, therefore, of imposing any additional obligation upon the trust estate, seems not to have been even in the mind of the executor. He made no objection that the suit had been brought against him individually, instead of against him as trustee or executor.

The decree is reversed, with costs, and cause remanded for further proceedings not inconsistent with this opinion.