Renshaw v. Williams

23 A. 905, 75 Md. 498, 1892 Md. LEXIS 79

Opinion

McSherry, J.,

delivered the opinion of the Court.

The twenty-fourth clause of the will of Mary A. Co-nine is in these words: “I give and bequeath to E. Calvin Williams, of the said City of Baltimore, the sum of five thousand dollars absolutely.” The fortyr-eightli clause reads: ‘Thereby nominate, constitute, and appoint my son-in-law G-enl. Frederick H. Starring, and E. Calvin Williams, of the City of Baltimore, • and 'State of Maryland, the executors of this my last will and testament; * * * * and, as I have left to each of my said executors legacies by this will, it is my will that said legacies to each of them respectively shall be in lieu of commissions as such executors, &c. ” By a codicil she revoked the legacy of five thousand dollars to her son-in-law, and also his appointment as executor, and substituted in his stead her grand-daughter’s husband, to whom she gave the legacy she had by her will bequeathed to her son-in-law. After the death of Mrs. Conine. a caveat was filed against her will, and Mr. Williams, who-was not one of the testatrix’s next-of-kin, was appointed hy the Orphans’ Court of Baltimore City administrator pendente lite. He gave bond and qualified as such. During the pendency of the caveat proceedings he settled three accounts as administrator pendente lite, in each of which he was allowed by the Orphans’ Court commissions that aggregated $3,644.99, but this sum was subsequently reduced to $’2,945. The contest over the will having been adjusted, Mr. Williams g'ave bond and qualified as executor, and proceeded to complete the administration of Mrs, Conine’s estate. His co-executor never applied for letters testamentary, and never qualified. On June fifteenth, eighteen hundred and ninety-one, Mr. Williams stated, as executor, an account wherein he was allowed a credit for the payment to himself of the legacy of five thousand dollars mentioned in the twenty-fourth and forty-eighth clauses of the will. Subsequently some of the legatees filed a petition in the Orphans’ Court, praying that the commissions claimed by Mr. Williams in the three, accounts stated by him as administrator pendente lite be disallowed, on the ground that the legacy of five thousand dollars was intended to- he in lieu of all commissions. Mr. Williams answered this petition, and after a hearing the Orphans’ Court refused the relief sought and dismissed the petition. From that order the pending appeal was taken.

. It will he seen from this statement of the facts that the only question involved is, was Mr. Williams entitled to retain the five thousand dollars legacy which was given to him by the will in lieu of commissions as executor, and at the same time to receive the commissions allowed by the Orphans’ Court to him as administrator pendente lite ■ In other words, can he claim for one entire and continuous administration of the estate (though that administration has been made by him under two different representative designations) a larger compensation than the testatrix has herself fixed, when the sum so fixed by her exceeds the amount to which he would be entitled at the maximum rate of commissions prescribed by law ?

There can be no doubt that the legacy was given to Mr. Williams, not as a gratuity, and not unconditionally, but in lieu of commissions as executor. Upon this subject the will is explicit. Under sec. 6 of Art. 93 of the Code, when a testator makes a bequest to his executor by way of compensation in lieu of commissions and the sum bequeathed is less than that which an allowance of the highest rate of commissions fixed by sec. 5 of the same Article, would produce, the Orphans’ Court is at’ liberty, in its discretion, to allow the executor such a per centage as, reckoning the legacy therein, will not exceed the maximum, and not be less thaii the minimum rate established by law. No testator can deprive the Orphans’ Court of this power. Mc Kim and Marriott, Ex’rs, &c. vs. Duncan, et al., 4 Gill, 72; State, use of Manning vs. Baker, et al., 8 Md., 49; Handy vs. Collins, Ex’rx, 60 Md., 229. In the case before us the total amount of the personal estate with which Mr. Williams was charged and for which he accounted in all the settlements made by him was $12*7,250.34, and the maximum rates of commissions allowed thereon by sec. 5 of Art. 93 of the Code, are, on the first twenty thousand, ten per cent., and on the residue, two per cent.; and these rates would yield, on this estate, an aggregate of $4,145; which is a sum less than the amount of the legacy given by the will in lieu of commissions. This being so, can the appellee, by administering the estate partially as administrator pendente lite and partially as executor, become entitled to and receive more than the testatrix intended him to receive for a full and complete settlement of her whole estate; and more than the statute would have allowed him for the same services had no caveat been filed, and no legacy been bequeathed him as executor?

Now, his right to administer pendente lite was founded under the statute solely on his having been named executor in the will. The largest portion of the personal estate was not bequeathed to him, and he would not have been entitled to letters of administration had Mrs. Conine died intestate. Under sec. 68 of Art. 93 of the Code, whenever the validity of a will is contested, administration pending the litigation must be committed by the Orphans’ Court to the executor named in the will, or, to the legatee to whom the largest portion of the personal estate has been bequeathed, or, to the person who would have been entitled to administer in case of intestacy. Within these limits the Orphans’ Court may exercise its discretion. Though Mr. Williams’ appointment as administrator pendente lite was recommended by some of the legatees, none of them filed renunciations, and he was selected by the Orphans’ Court from among those equally entitled under the statute. He was entitled only because he had been named executor in the will. He assumed and discharged, therefore, the duties of administrator pendente lite by reason of bis having been selected and named by the testatrix as executor; and the duties and acts which he performed whilst he was called administrator pendente lite are precisely and identically the same duties, and acts which he would have performed had he been called executor. What he did as administrator pendente Lite is what he would have done as executor had no caveat been filed. What he claims compensation for as administrator pendente litéis what he would have been paid for by the legacy if no litigation had deferred the probate of the will. He did nothing as administrator which he would not have done as executor; and every thing which he did do as administrator left that much less to be done by him as executor. Each administration was a part of one whole and entire trust by one person under two different official names. Had the will been probated prior to the caveat being filed, it could not he pretended that the acts done by Mr. Williams in-administering the estate during the pendency of the litigation were not those which he was bound to perform without other compensation than the legacy. If this be so — and it cannot possibly be denied — how can the accidental intervention of the caveat before the probate was taken so radically change the character of those very same acts as to make them, because done before probate, not part of the identical duties for the performance of which the legacy was designed to be a full and an ample compensation ? That legacy was given as a payment for all the labor and services which Mr. Williams might perform in completely settling Mrs. Conine’s whole personal estate. It was given to him as executor, because it was supposed by the testatrix that he would fully settle the estate in that capacity; but it matters not, in the eye of the law, under which designation or description of office he acted, provided he did exactly what and no more, than the testatrix intended him and appointed him to do. Had the services which he performed as admin istrator pendente lite been 'of a different character from those which he would have performed as executor'had no caveat been filed, there might- have been more reason to demand additional compensation; but its allowance, under the circumstances stated, would be practically-awarding nearly double compensation. The result of the Orphans’ Court’s order is that Mr. Williams has received for doing precisely the work he was appointed by the testatrix to perform as executor, nearly double the sum which the highest rate of commissions allowed by law would have realized. A decision leading to a consequence so repugnant to the policy bf the la.w cannot be founded on correct. principles. Had a different person been appointed administrator'pendente lite, that person would have been entitled to fair and reasonable commissions for his services. McPherson’s Adm’rs vs. Israel Adm’r, 5 G. & J., 60. “The Acts of 1798, ch. 101, and 1820, ch. 174, [Code, Art. 93] contemplate the allowance of several commissions on the same assets when they have been administered by different persons in part.” Lemon vs. Hall, 20 Md., 171. Or, had the same person acted as administrator pendente lite and executor in a case where no legacy greater than the maximum commissions had been bequeathed to the executor by way of compensation, there also commissions could have been allowed the administrator pendente lite for a partial administration. Estate of Baxley, 47 Md., 555. But each of these instances differs from this case. In the first, the administrator pendente lite is entitled to be paid for the services which he may render prior to turning the assets over to his successor, the executor; and the executor would he entitled to compensation for subsequent labor performed by him. Thus each would be compensated for what he had done. And so an administrator pendente lite who afterwards becomes executor, may ordinarily be paid for each partial administration. 47 Md., supra; Wilson vs. Wilson, 3 G. & J., 20. I-n such a case he would not he paid twice for the same services. But where he has been bequeathed, in lieu of commissions, a legacy larger than the commissions would amount to, and does as administrator pendente lite, only that which he was bound to do as executor, the legacy must be treated as a full compensation for all the labor it was intended to cover, namely, the entire administration of the whole estate by the same person, though part of that estate passed through his hands as administrator pendente lite, and part through his hands as executor.

{Decided 16th March, 1892.)

The Orphans’ Court was of opinion that because secs. 97, 98 and 99 of Art. 81 of the Code impose a tax on the commissions of executors and administrators, the Court was required to allow commissions in every case in order that the tax may be collected and paid into the Treasuiy. But without pausing to consider whether these sections do or do not require the imposition of the tax upon a legacy given in lieu of commissions — for that question is not involved in this proceeding — it is sufficient to say that they do not authorize the Orphans’ Court to allow commissions under the circumstances presented by this .record.

It results from the views we have expressed that the Orphans’ Court was without jurisdiction to allow the commissions it did allow to Mr. Williams, and its order of October 31st, 1891, must be reversed, and the cause will be remanded, that an order may be passed disallowing said commissions.

Order reversed and cause remanded, the costs in both Courts to be paid out of the estate.