The orphans' court, by the testamentary laws of Maryland, has a
general power to administer justice in all matters relative to the
affairs of deceased persons according to law. The commission to be
allowed to an executor or administrator is submitted to the
discretion of the court, and is to be not under five percent nor
exceeding ten percent on the amount of the inventory.
If the executor has a claim on the estate of the deceased, it
shall stand on an equal footing with other claims of the same
nature.
On a plenary proceeding, if either party shall require it, the
court will direct an issue or issues to be made up and sent to a
court of law to be tried, and any person conceiving himself
aggrieved by any judgment, decree, decision, or order may appeal to
the court of chancery or to a court of law, and in Maryland the
decision of the court, to which the appeal is made is final.
The Supreme Court of the United States has jurisdiction of
appeals from the orphans' court, through the Circuit Court for the
County of Washington by virtue of the Act of Congress of February
13, 1801, and by the act of Congress subsequently passed, the
matter in dispute exclusive of costs, must exceed the value of
$1,000 in order to en title the party to an appeal.
The commission to be allowed to the executor or administrator is
submitted by law to the discretion, of the court upon a
consideration of all the circumstances, and it was obviously the
intention of the legislature that the decision of the orphans'
court should be final and conclusive.
The Court being satisfied by an examination of the evidence
contained in the record of the proceedings of the Orphans' Court of
the County of Washington relative to a claim made upon the estate
of the testator by the executor that the said evidence was too
loose and indefinite to sanction the claim, disallowed the same and
reversed the decree of the orphans' court which allowed the
claim.
The defendant obtained letters testamentary on the estate of
Thomas C. Hodges deceased, and passed his accounts in the Orphans'
Court of Washington County, in which he was allowed 10 percent
commission on the inventory of the deceased's estate amounting to
$2,358.70 and $1,200 for services rendered by him to the
deceased.
The testamentary law of Maryland under which this commission was
allowed is in these words:
"His commission, which shall be at the discretion of the court,
not under five percent nor exceeding ten percent on the amount of
the inventory."
Act of Maryland, ch. 101. sub. ch. 10. sec. 2.
Page 26 U. S. 563
The appellants, creditors of the deceased's estate, filed their
petition in the orphans' court objecting to the allowance of these
claims, and upon the answer of the appellee and the testimony taken
in the cause, the judge of the orphans' court decided in favor of
the appellee and allowed these claims. From this decision an appeal
was prayed to the Circuit Court for Washington County, where the
judgment of the orphans' court was affirmed.
From this decision this appeal was made.
The deposition of William W. Corcoran, Philip T. Berry, John S.
Hare James A. Magruder and Isaac S. Nicholls were taken and were
sent up with this record. These depositions were intended to prove
that the board and expenses of Thomas C. Hodges were paid by the
deceased, by whom he was employed in his store as an assistant.
That when the executor was spoken to about the account he had
raised against the estate of the testator, he stated he was sorry
he had brought forward the account, and that he should not have
done so but by the advice of another. That he had said that his
uncle the testator did not agree to give him wages, but a share of
the property was promised, but no agreement was made.
The depositions also stated that some six months before the
death of the testator, the defendant applied for wages, which were
refused, and he was told to take money from the drawer and goods
from the store, and if not satisfied, he might return to his
father. That it was understood the appellee was in the store of the
testator as a clerk. The testator observed at the time of making
his will that he had given the defendant, his nephew, a legacy as a
consideration for his services; he had always intended to give him
something; he gave him the legacy for his services because he had
not been paid for them. It was also testified that the executor had
a good deal of trouble in settling the estate.
The counsel for the appellants endeavored to maintain
1. That the claims of the executor had been improperly allowed
by the court below.
2. That the evidence shows the commission allowed is unjust and
unreasonable.
3. The appellee had no legal claim for services rendered to the
deceased.
Page 26 U. S. 564
MR. JUSTICE DUVAL delivered the opinion of the Court.
The appellee in this case obtained letters testamentary on the
estate of Thomas C. Hodges, deceased, and passed accounts in the
orphans' court for Washington County, in which he was allowed ten
percent commission on the inventory of the deceased's estate
amounting to $2,358.70, and $1,200 for services rendered to the
deceased in his lifetime. The appellants, creditors of the
deceased, finding that the estate would probably be insufficient to
pay the full amount of their claims, filed their petition in the
orphans' court objecting to the allowance of the claims of the
executor, alleging that the property of the deceased consisted only
of a store of goods in Georgetown, and a few debts due to him, and
that the settlement of the estate was made without much labor or
expense. Upon the answer of the executor, and the testimony taken
in the cause, the judge of the orphans' court decided in favor of
the executor, and decreed that both claims be allowed. From this
decree an appeal was prayed and granted to the Circuit Court for
Washington County, in which the judgment of the orphans' court was
affirmed. From this decision the cause is brought up, by appeal, to
this Court for final hearing and decree.
Several questions have been raised in arguing this cause. On the
part of the appellants, it is contended first that the
Page 26 U. S. 565
allowance of ten percent on the inventory, circumstanced as this
case appears to be, is unjust and unreasonable. Secondly, that
there is no foundation for the claim of $1,200 made by the executor
for services rendered the testator in his lifetime.
The counsel for the appellee contends first that the whole
allowance made by the orphans' court was no more than a moderate
compensation for the attention and prompt settlement of the
accounts of the deceased by the executor and for his services for
several years as a clerk in the store of the deceased, and secondly
that the decision of the orphans' court was final and conclusive,
and from which there ought to have been no appeal.
The power and authority of the orphans' court is derived from
the testamentary laws of Maryland. The last general act upon the
subject is that passed in the year 1798, ch. 101. The orphans'
court has a general power to administer justice in all matters
relative to the affairs of deceased persons according to law. The
commission to be allowed to an executor or administrator is
submitted to the discretion of the court, "not under five percent
nor exceeding ten percent on the amount of the inventory." If the
executor has a claim against the deceased, it shall stand on an
equal footing with other claims of the same nature. On a plenary
proceeding, if either party shall require, the court will direct an
issue or issues to be made up and sent to a court of law to be
tried, and any person conceiving himself aggrieved by any judgment,
decree, decision, or order may appeal to the court of chancery or
to a court of law. And in Maryland, the decision of the court to
which to appeal is made is final and conclusive. But in the case
under consideration, this Court has jurisdiction by virtue of the
Act of Congress of February, 1801, by which the Circuit Court for
the District of Columbia was created, which provides that
"Any final judgment, order, or decree in the said circuit court
wherein the matter in dispute, exclusive of costs, shall exceed the
value of $100 may be reexamined and reversed or affirmed in the
Supreme Court of the United States by writ of error or appeal."
By an act of Congress subsequently passed, the matter in
dispute, exclusive of costs, must exceed the value of $1,000 in
order to entitle the party to an appeal.
With respect to the commission to be allowed to the executor or
administrator, it is submitted by law to the discretion of the
court, not less than five nor more than ten percent. It may allow
the lowest or highest rate or any intermediate proportion between
the minimum and maximum to which, in its discretion, it may adjudge
the party to be entitled
Page 26 U. S. 566
upon a consideration of all circumstances according to the
services rendered and the trouble and expense in completing the
administration. Upon a just construction of this act it was
obviously the intention of the legislature that the decision of the
orphans' court should be final and conclusive, and such is the
opinion of this Court.
The claim of $1,200 for services rendered in the lifetime of the
testator rests upon different ground. The law places it "on an
equal footing with other claims of the same nature." The legality
and equity of the claim must be examined in the same manner as the
claim of any other creditor. Of course it is a claim on the trial
of which either party might have required a trial by jury in the
manner prescribed by law. But this was not asked, and the claim was
submitted in gross to the decision of the orphans' court, and was
decided on in like manner by the circuit court, and it is now
brought in the same shape before this Court.
To support a claim of this nature, it is incumbent on the party
making it to prove some contract, promise, or agreement, expressed
or implied, in relation to it. The testimony contained in the
record may be summed up in a few words. It is admitted by the
appellee that there was no agreement to pay him wages. It is in
proof that he lived with his uncle three or four years in the
capacity of a clerk, and that for more than half the time he was
the only clerk in the store, his uncle having great confidence in
him. That it was distinctly understood between them that the
testator had agreed to pay his board, to find him in clothing, and
to pay his expenses generally; that it was customary among
merchants to take young men of a certain age for their board and
clothes; that the uncle had said that at a future day he intended
to take him into partnership with him, and it was proved that the
testator, at the time of making his will, observed that he had
given his nephew a legacy as a consideration for his services, and
that he had always intended to give him something. It is not denied
that the testator had fully complied with his engagement to pay his
board, supply him with clothes, and pay his expenses. On this
testimony the claim rests. The evidence is too defective to require
comment. It is the opinion of this Court that it is too loose and
indeterminate to sanction the claim, and it cannot be allowed.
The decree of the circuit court affirming the decree of the
orphans' court as to this claim is reversed; in all other respects
it is affirmed.
