McKim v. Duncan

A testator by his last will declared, that neither of his executors should be entitled to any commissions for settling his estate, but that all necessary expenses relative to such settlement, should be charged to his estate. The orphans court allowed the executors a commission of six per centum. This was, however, cancelled by consent, and the question of commissions presented to that court cíe novo, when they decreed the executors were not entitled to any such allowance. Held, upon appeal, that the executors were entitled to the commissions which had been previously allowed them. If the acts of Assembly of this State do not expressly grant to the orphans court, power to allow executors commissions in such cases as those mentioned in the testator’s will, no commissions can be claimed by them. The act of 1798, chap. 101, which declares that the commissions of an executor shall be, at the discretion of the court, not under five, nor exceeding ten per centum, on the amount of the inventory or inventories, excluding what is lost or has perished, and prescribes the manner in which the account of an executor must be made out, confers upon the orphans court the power in this, as it does in all other cases, to allow a commission. A testator cannot take from the orphans court a power which the law gives it. The will of a testator is to be regarded in the administration of his estate; but this general rule is to be taken with this proviso, that such will be not inconsistent with the law. The 2nd sec., sub chap. 20, act of 1798, chap. 101, must he read in connexion with the 5th sec., 14th sub. chap, of the same act. The first clause makes it the duty of the court in all cases to allow commissions to executors. The other makes one exception to that rule. A testator is not permitted to deprive his executor of a commission of not less than five per centum, by bequeathing him, by way of compensation, any thing which shall appear to the court to be an insufficient compensation. A person by undertaking the office of executor does not elect, and is not bound to give effect to all the provisions to he found in a will. A testator cannot by his will prevent his executors from collecting and accounting for debts due his estate; nor can he authorise any other person to receive it from his debtors. A testator bequeathed to his three sons, to he equally divided between them, the whole of his capital used in his copper business, that may be standing to his credit after the payment of all debts and claims upon, or growing out of, that business. The capital in the copper company was returned by the executors in the schedule of debts due the deceased. Helo, that whether the testator was a partner of the firm engaged in the copper business with his sons, or only accommodated that firm, of which he was not a member, with a loan of money, could make no difference; that the money due the testator was a part of his personal estate, payable only to his executors; and when paid, constituted a part of the assets in their hands, to be by them accounted for in their settlements with the orphans court. A testator bequeathed to his son certain shares of stock theretofore transferred to him by his said son, who was also one of the executors of his father’s will. Held, that with the appraised value of such stock the executors must be charged, and it must be regarded as a part of his estate, and not the stock of its former owner, though there was no proof how the testator became the absolute owner. Upon the last two items the executors were held to be entitled to commissions.

Appeal from the Orphans Court of Baltimore county. On the 15th March 1845, the appellees filed their petition before the said court, alleging, that on the 8th December 1841, John McKim, Jr., made his last will; that he appointed his sons, D. T. and John S'., and his son-in-law, W. H. M., executors thereof, and therein declared, that no one of his executors should be entitled to any commissions for settling his estate; that the testator died in the month of January 1842; that his son, John S., renounced his appointment, and on 3rd February 1842, letters testamentary were granted to the appellants; that the executors settled three accounts with the said court, and claimed, and were allowed, in their third account, commissions to amount of §9418.57. And in their fourth account, §81.33; that the allowance of commissions to the executors being without notice to the appellees, they agreed to open the same, vacate the decree therefor, and that the subject matter of their claim thereto, might be again considered by the com't. The petition then proceeded to set forth the interest of the appellees under the will, and the diminution of their devises by the allowance of commissions to tire executors.. The petition further alleged, that as to a sum of §99,025.88, the same never was received into possession by the executors; that the interest of the testator in a copper establishment, was one in property, credits, and effects, which the testator, at the date of his will, and at the time of his decease, held or was entitled to, in partnership with his two sons, David T. and John S.; that the same was charged to the executors in their first account, and in their second account the said charge was extinguished, by a credit for the whole amount. — And that the same, when charged in their third account, was in the same account credited in discharge; the only effect of the introduction of this item into the said third account, being, as respects your petitioners, to diminish the residue of the estate by an allowance of six per cent, commissions thereon; and that as respects the warehouse, charged and credited at §7000, in said third account, and also in respect of the two hundred and sixty-five shares, Phoenix Shot Tower stock, charged and credited in said third account, at §15,900; — the only effect of the introduction of these items into said account, was to increase the allowanee of commissions to said executors; that in respect of the sum of $6000, charged on the dwelling house and property in Holliday street, no commission, in any point of view, ought to be allowed. Prayer, for a settlement of a further account, &c. The executors answered separately. David T. McKim’s answer claimed commissions, admitted that the question was still open, and among other matters alleged, that with regard to the capital of John McKim, Jr., & Sons, credited in the account of the executors, and on which commissions were charged, the same was the entire property of John McKim, Jr., for which he annually was credited with interest. He alleged he would not have taken out letters testamentary, but for the opinion of the judges of the court, expressed before he took them out, that he would be entitled to commissions. The answer of W. H. Marriott, also claimed commissions; — that he believes it was understood by all the representatives, before he took out letters, that commissions were to be allowed the executors; that he refused to undertake it, unless he was to be paid. The passage of the administration accounts, and allowance for commissions were admitted. That as to the item of $99,025.88, this respondent is advised, that the same is properly made liable to the commissions allowed by the said court, and stated in said accounts, because the same was a debt due to the estate of said testator, by said David T. McKim, and his brother, John S. McKim, the same having been loaned to them by the testator, who had no interest in the business in which the same was used, and for which it was loaned by him to his said sons not as a partner, but only as a friend and creditor. With this answer was filed a letter from J. M. Duncan, one of the appellants, dated 11th May 1843, to said Mariott, which stated: “ I have not seen Mr. Handy, since the time I mentioned to you, that we met on the street; nor have I said to him anything on the subject of executor’s fees, either pro or con. I had supposed that the commissions were to be charged by you, having expressed my opinion, that you were fairly entitled to a remuneration for your labor, and believed that a paper had been drawn up and signed by the members of the family, coinciding with that opinion. Have you not such a paper duly signed? My impression was, that you possessed this paper, and therefore I feel surprised by your note, which seems to imply that you have it not.” And also a declaration in writing, signed by said W. II. M., filed in court, setting forth, that in accepting and qualifying for the execution of said trust, he reserves to himself the right to demand and receive, such commissions as the orphans court of Baltimore county may, in its discretion, allow.” The appellees filed a general replication to the answers. A commission was issued, and there was proof, that John McKim, Jr., was not interested in the copper works, from the year 1839; that he received nothing from that concern after that period, but interest on his capital engaged in it. A deed of mortgage from D. T. McKim to his father J. McK., Jr., dated 1st May 1840, to secure the sum of $6900, was also filed in the cause. A variety of accounts, taken from the books of the deceased, with his several children, were also proved. By the last will and testament of the deceased, dated 8th December 1841, he bequeathed to his three sons, David T., John S., and Richard, to be equally divided between them, “ the whole of my capital used in the copper business, that may be standing to my credit, after the payment of all debts and claims upon, or growing out of that business;” and also the warehouse, in which that business was carried on. The testator bequeathed to his son David, his dwelling house, “ which, however, I charge with the payment of the sum of $6000, to constitute a part of the residuum of his estate:” his son to pay interest thereon. He also bequeathed to his said son, two hundred and sixty-five shares of Phoenix Shot Tower stock, heretofore transferred to me as collateral security, by hjm.” After various other devises to his children, and in trust for his grand-children, he devised a residuum of his estate, created from various specified sources, to amount of $60,608, in trust, for his three daughters, for life, with remainders over; and all the residue of his estate to his six children, share and share alike. The testator then declared, that neither of his said executors should be entitled to any commissions for settling his said estate, but all necessary expenses relative to such settlement, should be charged to his estate. By a codicil, dated 10th December 1841, the testator revoked the devise of that portion of his estate, which he liad bequeathed to his son David-, and again devised the same to him in trust, for the sole use of his wife, c., with remainder in trust for such of the child or children of the said David, or their descendants, as the said David may direct by, &c. The Shot Temer stock was included, and valued in the inventory of the estate, at $60 per share; as were also all the stocks which the testator devised in trust for his grand-children. The schedule of sperate and desperate debts, amounted to $123,117.74; of which D. T. McK, was alleged to be chargeable with $6000. The capital in the copper company, $99,025.85.' In the first account of the executors, they charged themselves— With an inventory of the personal estate of the deceased, $44,959.51. This included the Shot Toioer stock. With a debt of D. T. McKim, for amount due by him to the deceased, $6000. With the amount of the deceased’s interest in the firm of John McKim, Jr., & Sons, as returned in the lists of debts, $99,025.85. In their second account, they were credited with the item of $99,025.85, as prematurely, and erroniously brought on; the firm not being, as yet, settled. In their third account, the last item was restored, and the executors were allowed commissions on $156,976.22, at 6 per cent., $9418.57. There were allowed, also, a credit of $15,900, for two hundred and sixty-five shares Phoenix Shot Tower stock, which was bequeathed to David T. McKim, in trust, &c. The executors, from time to time, passed four other accounts. After the agreement to open the accounts upon the subject of commissions, and that the orphans court might reconsider that subject, de novo. That court, on the 15th March 1845, (Kemp, Leary, and Reader, J.,) decreed that neither of the executors should be entitled to any commissions, and that the court have no power under the will, to award the same; and that the executors further account, and charge themselves with the commissions credited in the accounts heretofore passed, &c. Prom that decree the executors appealed to this court. It was agreed, that upon this appeal the mortgage from D. T. McK., and J. McK., Jr., should not be considered as a ground of claim against him.