McKim v. Duncan , 4 Gill 72 ( 1846 )

Magruder, J.,

delivered the opinion of this court.

The will of the late John McKim, junior, gives rise to this controversy, and the first and principal question is, are the persons to whom letters testamentary were granted, and who have administered the assets, entitled to receive any remuneration for the services they have rendered ?

If. will be assumed in this case, that if our act of Assembly of 1798, ch. 101, does not expressly grant to the orphans court, the power to allow to the executors of Mr. McKim, a commission for their services, no commission can be claimed by them. But surely a larv, which, in prescribing the manner in which the account of an executor must be made out, has these Avords: “His commission, Avhich shall be, (at the discretion of the court,) not under five per cent., nor exceeding ten per cent., on the amount of the inventory or inventories, excluding Avhat is lost or has perished,” confers upon the orphans court the poAver in this, as it does in all other cases, to allow a commission. The question then is, can the testator take from the court the power which the larv gives to it, and which is conferred in language, which makes it their duty to alloAV not less than five per centum ?

The will of Mr. McKim, in one of its clauses, appoints David T. McKim,, John S. McKim, and William H. Martiott, the executors; and afterwards it is added: “I do hereby declare it as my avíII and intention, that neither of my said executors shall be entitled to any commissions for settling my estate, but all necessary expenses relative to such settlement, shall be charged to my estate.” John declined, the others obtained letters testamentary, and norv claim the commission. Is the above clause in the will a bar to the claim ?

It must be conceded, that the act of Assembly no Avhere gives to a testator the porver Avhich this testator attempted to exercise. It is true, that the will of the 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. That this provision of the will is inconsistent with the larv, must be obvious upon an examination of the act of 1798, especially if'the 2nd sect, of sub. chap. 20, be read in connection Avith the 5th sect, of sub. ch. 14. The first clause makes it the duty of the court, in all cases, to make an alloAVance; the other makes one single exception, and this case cannot be brought Avithin that exception. To defeat a claim founded upon sub. ch. 20, sect. 2, because of this clause in the will, there must be found a larv which gives to the testator a power to repeal the act of 1798, so far as it directs the manner in which the accounts to be passed by his executors are to be made out: a larv which directs the commission to be allowed, unless the testator shall otherwise direct. The testator is not permitted to deprive his executor of a commission of not less than five per centum, even by bequeathing to him, “by way of compensation,” any thing which shall appear to the court to be insufficient compensation. Surely, if he cannot take from the court its power to allow the executor ten per centum upon the amount of the inventory, by giving to him a less sum than the law authorises the court to allow, and which the court believes to be sufficient, he cannot, by forbidding any allowance whatever to be made, deprive the court of the power which (he law says it shall exercise in all cases, with but one exception, and (hat exception not embracing this case. The court may allow more, although the will gives eight per centum, (thus disregarding such a provision in the will.) Surely its power is not to be taken away by a clause of the will, which allows to the executor nothing.

A person, by undertaking the office of executor, does not elect, and is not bound to give effect to all the provisions to be found in the will. Such clauses as are inconsistent with the law which the executor is to obey, are of no validity, and constitute no part of the will.

It is not believed, that the record furnishes testimony, that the executors agreed to release any commission to which the law might entitle them. The agreement spoken of might not have been executed, because, after the opinion expressed by the court, or one of its judges, it was not deemed of importance to obtain an agreement, in regard to the executor’s commission, on an estate in which three married ladies were principally in terested. Indeed, one of the executors seems to have taken quite unreasonable pains, to let it be distinctly understood by all who are concerned in the estate, that he had a will in regard to the commission, inconsistent with that of the testator, and that the law should settle the question between them.

The opinion of this court then is, that in this case, and notwithstanding the provision of the will, the executors were entitled to the commission which had been previously allowed to them.

The petition filed by the appellees, besides insisting that no commission was to be allowed to the executors, also charges, that commissions had been improperly allowed upon particular sums of money. Upon these questions, the court below could express no opinion, because, in its judgment., it had no legal power to make any allowance when the will forbids it. Differing in opinion with the court below on this question, it is our duty to direct what shall be the decree in the premises.

The first objection is, to commission allowed on a sum of money returned by the executors as a debt, due the deceased by David T. McKim and John S. McKim, surviving partners of John McKim, junior. It can make no difference, in deciding this question, whether the testator was a partner of the firm, or accommodated that firm, of which he was not a member, with a loan of so much money. The money was unquestionably a part of his personal estate, payable only to the executors, and when paid to them, constituted a part of the assets in their hands to be by them accounted for in their settlements in the orphans court. The testator could not, by his will, prevent the executors from collecting and accounting for this portion of his estate, or authorise any other person to receive it from the debtors.

It can be no objection, to the commission allowed on the appraised value of two hundred and sixty-five shares of Phoenix shot tower stock, that it was transferred to testator by one of the executors, “as collateral security.” While the executors are charged with the appraised value of this stock, it must be regarded as a part of his estate. It cannot be regarded as the stock of its former owner, although we are not told when or how the testator became the absolute owner of it.

We are of the opinion, then, that the executors were rightfully allowed a commission on these two sums of money.

We are also of opinion, with respect to the i|6000, that they are nol assets, upon which a commission is to be allowed by the orphans court.

JUDGMENT REVERSED, &C.