282 Mass. 555

December 14, 1932 - April 4, 1933

Middlesex County

Present: Rugg, C.J., Crosby, Pierce, Field, & Lummus, JJ.

Executor and Administrator, Fee. Contract, Consideration. Assignment.

The stock of a certain corporation was valuable, but was closely held and was not readily marketable. The president of the corporation was also executor of the will of one whose estate consisted largely of such stock and whose widow, the residuary legatee, was anxious that the stock be converted into cash. As a result of negotiations, conducted by brokers, for a sale of all the stock of the corporation to new interests, the stock of the estate was sold for a substantial sum. The executor did not have much to do with effecting the sale. In his account, he sought allowance of an additional fee for services in such sale, basing his claim upon a conversation with the residuary legatee and two unsealed writings signed by her, in which she assented to the amount of his total charge. The additional fee was disallowed by the judge of probate at the hearing on the account. Held, that

(1) The anxiety of the residuary legatee to convert the stock into cash did not constitute consideration for any promise by her to allow the additional fee of the executor, nor justify it;

(2) No consideration appeared for the assent or agreement of the residuary legatee that the executor should be paid the additional

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fee: he owed a duty as executor to use all reasonable efforts to liquidate the estate;

(3) The writings did not purport to be assignments of a share in the estate and could not be enforced as such;

(4) The executor was entitled to only a reasonable fee, the amount of which was a question of fact for the judge of probate;

(5) No error appeared in the disallowance of the additional charge.

PETITION, filed in the Probate Court for the county of Middlesex on February 17, 1932, for allowance of the first and final account of the petitioner as executor of the will of William F. Trefrey, late of Newton.

The petition was heard by Harris, J., a stenographer having been appointed under statutory provisions. Material evidence and a decree entered on the account are described in the opinion. The petitioner appealed.

H. Parker, (L. S. Thierry with him,) for the petitioner.

C. L. Newton, (B. L. Hill with him,) for the respondents.

LUMMUS, J. Warner V. Taylor appeals from a decree of the Probate Court disallowing an item of $20,000 "for services in accordance with special agreement," for which he asked credit in Schedule B of his first and final account as executor of the will of William F. Trefrey.

When Trefrey died in June, 1929, holding seven hundred sixty-three and fourteen fifteenths shares of stock in W. S. Quinby Company, a corporation engaged in the coffee business, Warner V. Taylor was president of that corporation and one of three executors and trustees under the will of W. S. Quinby, who had died about eight months before owning three thousand three hundred sixty-two shares of said stock out of five thousand eight hundred nine and one fifteenth shares issued. The inventory of the Trefrey estate showed $353,657.29, of which $289,792 consisted of stock in that corporation, valued at nearly $380 a share. The stock, however, was closely held and not readily marketable, and the respondent Elizabeth S. Trefrey, the widow and residuary legatee of said Trefrey, was anxious to turn her holdings into money. Shortly after the death of Trefrey, negotiations began for the sale of all the stock of the corporation to new interests. The sale was finally effected on

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September 26, 1931, under a complicated contract, and produced somewhat more than $300 a share. There was ample evidence that the appellant did not have much to do with the success of the negotiations leading up to the sale, and that the burden of effort rested on brokers employed on commission. See Blake v. Pegram, 101 Mass. 592, 599, 600.

The accountant made a charge of $15,000 as his "fee as executor by special agreement," and this sum was allowed without dispute. He rests his claim to $20,000 more upon a talk in May, 1931, in which the respondent Elizabeth- S. Trefrey expressed her satisfaction with a total charge of $35,000 by the accountant, and upon two unsealed writings signed by her on September 14, 1931, and September 19, 1931, in the first of which she assented to that charge and in the second of which she agreed to it. See Newell v. West, 149 Mass. 520, 521; Bowker v. Pierce, 130 Mass. 262; Bailey v. Crosby, 226 Mass. 492. But no consideration whatever is shown for any such assent or agreement. To say nothing of his duty as the salaried president of the corporation, the accountant owed a duty, as executor of the will of William F. Trefrey, for the compensation which might be allowed him by the Probate Court, to use all reasonable efforts to liquidate the estate. The anxiety of the respondent Elizabeth S. Trefrey to convert the stock into money did not justify an additional charge or furnish any consideration for her promise to allow one. See Boston Bar Association v. Hale, 197 Mass. 423, 437. The unsealed writings did not purport to be assignments of a share in the estate, and cannot be enforced as such. See Security Bank of New York v. Callahan, 220 Mass. 84, 88, 89.

What was a reasonable fee for the services of the accountant was a question of fact for the Probate Court. An examination of the express findings of fact and the evidence does not convince us that the decision of that court, disallowing the item in dispute, is plainly wrong. Berman v. Coakley, 257 Mass. 159, 162. Bankers Trust Co. v. Dockham, 279 Mass. 199, 200.

Decree affirmed.