Nicholls v. Hodges

APPEAL from the Circuit Court of Washington county in the District of Columbia.

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 per cent. commission on the inventory of the deceased's estate amounting to $2358 70, and $1200 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 per cent. nor exceeding ten per cent. on the amount of the inventory.'-Act of Maryland, ch. 101. sub. ch. 10. sect. 2.

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 favour 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 endeavoured 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.

Mr. Key for the appellant.--

The evidence does not establish any claim to the compensation claimed by the appellee. On the contrary, he himself acknowledged he had no claim. But if any debt was due to him, the amount thereof could not be ascertained by the course adopted in this case. It must become the subject of proof like all other demands on the estate.

It is contended that no appeal is allowed in this case, because the provisions of the law of Maryland leave to 'the discretion' of the Court, the determination of the amount of commissions. What is the meaning of the assertion that no appeal can be maintained in such a case? It is only when the exercise of discretion by the Court is matter of favour or indulgence, that the rule applies; but when there are legal rights, the discretion of the Court applies to those rights, and its exercise is a matter of law, and like all others, when exercised is examinable.

Mr. Coxe for the appellee.--

This is an application to have an examination of an account which has been passed upon by the Orphans' Court. It is denied that a matter to be determined by the discretion of the Court, can be the subject of appeal. The party must point out an error in law, and if the allowance by the Court is not beyond the per centage authorized by the statute, there cannot be such error.

These accounts having been passed by the Orphans' Court, before whom were all the facts, the only remedy which remains is upon the bond given by the executor; and in such an action all the matters are open for examination.

Mr. Justice DUVAL delivered the opinion of the Court.--