Opinion
November 13, 1907.
Clarence W. Smith, for the appellant.
Borden D. Smith, for the respondents.
The claim of the respondents is that notwithstanding every contract by which the decedent was employed as an agent by the insurance companies to solicit insurance and collect premiums had terminated some time before his death, and he could, therefore, claim no benefit or advantage from the business done or the way in which it had been conducted, the deceased left the good will of an insurance business, which was subject to sale and purchase, in the same way and with like effect as other assets which it was the duty of the administratrix to sell.
It is my opinion that this claim is unfounded. The good will of a business, as property, is intangible and must always attach to and rest upon some principal and tangible thing, such as an established business. (20 Cyc. 1276.) It is an advantage or benefit that has been acquired by and belongs to the proprietors of an existing business. ( Boon v. Moss, 70 N.Y. 465.) It is unnecessary to inquire whether an agent acting under a contract for personal services, which provides that he shall be paid a commission upon the amount of premiums received on the policies procured by him, can acquire a good will of the business. The proper conclusion in this case must be derived from the fact found in the decision of this case, as to which there is no dispute or controversy, that the deceased had no insurance business or other enterprise at the time of his death, to which a good will could attach as an incident. From this fact it necessarily follows that whatever benefit or advantage the deceased acquired in the business in which he was employed by the insurance companies, did not survive the termination of his contract with them.
The decree should, therefore, be modified by striking therefrom the item of $800 charged against the administratrix as the value of the insurance business, also the provision requiring her to pay $100 referee fees, $70, the allowance to the stenographer, and the allowance to the contesting creditors, amounting in the aggregate to the sum of $450, and as so modified affirmed, with costs of this appeal to the appellant.
All concurred.
Decree modified as per opinion, and as modified affirmed, with costs of this appeal to appellant.