Ross v. Conwell

Citation34 N.E. 752, 7 Ind.App. 375
Case DateSeptember 19, 1893
CourtCourt of Appeals of Indiana

7 Ind.App. 375
34 N.E. 752

ROSS et al.
v.
CONWELL.

Appellate Court of Indiana.

Sept. 19, 1893.


Appeal from circuit court, Fayette county; F. S. Swift, Judge.

Appeal by John W. Ross and others, trustees, from a judgment sustaining in part exceptions filed by William D. Conwell to their report as trustees. Affirmed.


Conner & Frost, for appellants. Little & McKee, for appellee.

REINHARD, J.

The appellants are the trustees under the will of Abraham B. Conwell, deceased. The testator, who left a large estate to be disposed of, provided in his will, among other things, that the “trustees, or their successors, shall each receive out of the proceeds of said estate, for their services in the discharge of said trust, a reasonable compensation, to be fixed by themselves.” Exceptions were filed by the appellee to the appellants' final report in said estate in the court below, and these were in part sustained. From this ruling an appeal was

[34 N.E. 753]

taken to the supreme court, and from that court the cause was transferred to this, under the act enlarging the jurisdiction of the appellate court. Acts 1893, p. 29, § 1, subd. 7.

The only question presented relates to the compensation of the trustees for their services, the court having ordered a reduction of the amounts claimed and taken credit for by them in their report. At the trial a number of witnesses testified upon both sides of the question of the reasonableness of such charges, as well as to the character of the services rendered, and there was a sharp conflict in their testimony. If the question of what was a reasonable allowance was properly submitted to the court, it is difficult to perceive upon what basis a reversal could be asked upon the sufficiency of the evidence. There was ample evidence to support the finding, and, under the well-settled rule that the judgment will not be disturbed when the evidence is at all conflicting, we cannot interfere, in the absence of some other cause sufficient for a reversal. It is strongly contended, however, on the part of appellants, that the question of what was “a reasonable compensation” was not one within the power of the trial court to determine, but must be left to the decision of the trustees themselves, where the testator had placed it. To this proposition we cannot give our assent. Ordinarily, it is true, where the testator himself stipulates what the compensation shall be, and the trustee or executor accepts the trust, it amounts to a contract...

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5 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Soc. v. Brumfield, 102 Ind. 146; Kellar v. Orr, 106 Ind. 406; Polk v. Johnson, 65 N.E. 537; Steel v. Halladay, 25 P. 77; Ross v. Conwell, 34 N.E. 752; In re Mulligan's Est., 27 A. 398; 12 Ency. L. (2d Ed.), 1286; Beach on Trustees, Sec. 748; In re Est. of Davis, 4 P. 22; Bate v. Bate, 11 Ky......
  • Polk v. Johnson
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1903
    ...may properly respect the contract, and make the appointment in pursuance of its terms. State v. Johnson, 52 Ind. 197;Ross v. Conwell, 7 Ind. App. 375, 34 N. E. 752;Bate v. Bate, 74 Ky. 639;Ephraim v. Pacific Bank, 136 Cal. 646, 648, 69 Pac. 436;Steel v. Holladay, 19 Or. 517, 25 Pac. 77; Sec......
  • Suverkrup v. Suverkrup, No. 16285.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1939
    ...the legal effect of provisions in a will which fix the compensation of executors. This court in the case of Ross et al. v. Conwell, 7 Ind.App. 375, 34 N.E. 752, said [page 753]: “Ordinarily, it is true, where the testator himself stipulates what the compensation shall be, and the trustee or......
  • Polk v. Johnson
    • United States
    • Indiana Court of Appeals of Indiana
    • November 25, 1902
    ...it is stipulated that he shall act without compensation, by such acceptance creates a binding contract to so act. Ross v. Conwell, 7 Ind. App. 375, 34 N. E. 752; Secor v. Sentis, 5 Redf. Sur. 570; In re Mulligan's Estate, 157 Pa. 98, 27 Atl. 398; section 2552, Burns' Rev. St. 1901. There ar......
  • Request a trial to view additional results
5 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Soc. v. Brumfield, 102 Ind. 146; Kellar v. Orr, 106 Ind. 406; Polk v. Johnson, 65 N.E. 537; Steel v. Halladay, 25 P. 77; Ross v. Conwell, 34 N.E. 752; In re Mulligan's Est., 27 A. 398; 12 Ency. L. (2d Ed.), 1286; Beach on Trustees, Sec. 748; In re Est. of Davis, 4 P. 22; Bate v. Bate, 11 Ky......
  • Polk v. Johnson
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1903
    ...may properly respect the contract, and make the appointment in pursuance of its terms. State v. Johnson, 52 Ind. 197;Ross v. Conwell, 7 Ind. App. 375, 34 N. E. 752;Bate v. Bate, 74 Ky. 639;Ephraim v. Pacific Bank, 136 Cal. 646, 648, 69 Pac. 436;Steel v. Holladay, 19 Or. 517, 25 Pac. 77; Sec......
  • Suverkrup v. Suverkrup, No. 16285.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1939
    ...the legal effect of provisions in a will which fix the compensation of executors. This court in the case of Ross et al. v. Conwell, 7 Ind.App. 375, 34 N.E. 752, said [page 753]: “Ordinarily, it is true, where the testator himself stipulates what the compensation shall be, and the trustee or......
  • Polk v. Johnson
    • United States
    • Indiana Court of Appeals of Indiana
    • November 25, 1902
    ...it is stipulated that he shall act without compensation, by such acceptance creates a binding contract to so act. Ross v. Conwell, 7 Ind. App. 375, 34 N. E. 752; Secor v. Sentis, 5 Redf. Sur. 570; In re Mulligan's Estate, 157 Pa. 98, 27 Atl. 398; section 2552, Burns' Rev. St. 1901. There ar......
  • Request a trial to view additional results

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