Ohlendorf v. Kanne ( 1887 )

Robinson, J.,

delivered the opinion of the Court.

The main question in this case, is whether an agreement whereby one joint executor renounces his right to letters testamentary in favor of his co-executor, in consideration of being paid onerhalf commissions, is a valid agreement ?

The appellee was unquestionably entitled, as joint executor, to letters testamentary, and upon the' settlement of the estate he would have beeu entitled to one-lialf of the ■commissions. If he renounced this right in pursuance of an agreement with his co-executor whereby he was to receive one-half of the commissions, such renunciation is a ■sufficient consideration to support the contract.

In Bassett and Wife vs. Miller, 8 Md., 551, and in the later case of Dolfield vs. Kroh, 62 Md., XIII of “Opinions Unreported,” it was decided, that a like contract by one entitled to letters of administration, was a valid contract which could be enforced in an action at law. If so, there is no reason why a contract made by an executor, should not be enforced. In the one case, the party renouncing was entitled to letters of administration by force of the statute, in the other he was entitled under the will'of the testator. In both the right relinquished was a vested right, of which the party could not be deprived without his consent. Commissions, it is true, are allowed in consideration of ■services rendered in the settlement of the estate, and ■although such contracts are not to be encouraged, we see no sufficient grounds on which they could be declared invalid.

There is a broad distinction between such a contract, -and'the one in Folck, et al. vs. Smith, 13 Md., 85, whereby an attorney agreed to divide his commissions provided he was appointed trustee to sell the real estate. In that case, it was held that the appointment of a trustee was one resting solely in the discretion of a Court of equity, and there was, therefore, no consideration to support the contract. Here, however, the appellee was entitled as a matter of right to letters testamentary, and his renunciation of this right is a consideration sufficient to support the agreement. The evidence, however, in regard to the agreement was ■conflicting. The proof in support of it rested entirely upon the testimon]r of the appellee, and his testimony was in •every particular flatly contradicted by that of the appellant. And although it was within the province of the jury to believe tbe one and to disbelieve the other, yet the burden of proof was upon the appellee to establish the-agreement by a preponderance of testimony, or, in other words, to prove it by evidence satisfactory to the jury. The appellant’s second prayer to this effect, announces an elementary principle everywhere recognized, and should have been granted.

There was error also in excluding the evidence offered in the first exception. The suit was brought upon an agreement made before letters testamentary had been granted, but the appellee testified, that after the settlement of the estate, he called upon the appellant for the-payment of the one-half commissions under that agreement, to which the appellant replied that he had changed his mind. Upon cross-examination the witness said he-called upon the appellant “and wanted him to settle up, and that commissions were not mentioned, but understood.”

The appellant then asked witness, whether “his wife-was not at that time entitled to a share of the estate, and whether the settlement referred to in this conversation was not in regard to the payment of the wife’s share of' said estate.”

The witness had testified about a conversation had Avith the appellant after the settlement of the estate, and the question proposed Avas in every sense a proper one for the purpose of testing the recollection of the Avitness in regard to the conversation; that is to say, Avhether it was a conversation about the payment of commissions, or about the-payment of the wife’s share in the estate. As to the disposition of the wife’s share by the witness, this Avas matter-altogether irrelevant to the issues in the case, and evidence in regard thereto was properly excluded.

In the fourth exception, it appears that after both sides-had closed their evidence, and after the appellant had offered a prayer to the effect, that there Avas no evidence legally sufficient to prove what, if any amount of commissions had been received by the appellant as executor, the Court at the instance of the appellee, allowed him to offer in evidence, the auditor’s report, showing the amount of •commissions thus received.

(Decided 21st January, 1887.)

It does not appear by the record, that there was any rule of the Court in regard to the rights of a party to offer evidence after the case had been closed, and in the absence of such a rule, it was unquestionably a matter in the discretion of the Court, and not, therefore, reviewable by the Appellate Court.

Judgment reversed, and neio trial awarded.