Jacobsen v. Levine ( 1908 )

Giegerich, J.

The action was brought by the assignee of the defendant Levine to recover the value of legal services rendered by Levine to himself and his codefendant Van Schoonhoven in their capacity as executors of the last will and testament of Ellen Christiansen. The will contained the following clause: “ I direct my said executor Samuel W. Levine to act as attorney for my estate and to make his charges therefor.” .

After the case was tried the judge allowed it to go to the jury for the purpose of having the value of the services determined, and the jury brought in a verdict for $-114.20. Subsequently the motion made' on behalf of the defendant Van Schoonhoven for a new trial and for the dismissal of the complaint was granted, and from that order this appeal is taken.

On behalf of the plaintiff it is argued that the executor Van Sehoonhoven, by accepting the benefit of the services of the defendant Levine, made himself personally liable; but in view of the express direction of the testator on the point it is difficult to see how any choice was left to the respondent; and, if he had no choice and the employment of his coexecutor as attorney was prescribed by the will, it cannot be said with any show of reason that he accepted the services or did any other act to make himself personally liable.

Instead of this being the usual case where action must first be brought against the executors, and they in turn reimburse themselves upon their accounting, it is a case where there is a direct relation between the claimant and the estate, a relation created by the will itself; and, consequently, I think the correct practice will be for the plaintiff, or the defendant Levine, if he takes back a reassignment of the claim, to have the same adjudicated in the accounting before the surrogate. The claim is not that of a stranger against the executors, but that of one of the executors against the estate; and, by having it disposed of as such upon the accounting, the anomalous situation here presented of a person suing himself (for that is what the present action really amounts to, notwithstanding the purported assignment) will be obviated, and the claim will be presented at a time and under circumstances when the persons beneficially interested in the estate can have a hearing.

The order should be affirmed, with costs.

Gildersleeve, J., concurs.

Greenbaum, J., concurs in result.

Order affirmed, with costs.