Nicholls v. Hodges,
26 U.S. 562 (1828)

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U.S. Supreme Court

Nicholls v. Hodges, 26 U.S. 1 Pet. 562 562 (1828)

Nicholls v. Hodges

26 U.S. (1 Pet.) 562


The orphans' court, by the testamentary laws of Maryland, has a general power to administer justice in all matters relative to the affairs of deceased persons according to law. The commission to be allowed to an executor or administrator is submitted to the discretion of the court, and is to be not under five percent nor exceeding ten percent on the amount of the inventory.

If the executor has a claim on the estate of the deceased, it shall stand on an equal footing with other claims of the same nature.

On a plenary proceeding, if either party shall require it, the court will direct an issue or issues to be made up and sent to a court of law to be tried, and any person conceiving himself aggrieved by any judgment, decree, decision, or order may appeal to the court of chancery or to a court of law, and in Maryland the decision of the court, to which the appeal is made is final.

The Supreme Court of the United States has jurisdiction of appeals from the orphans' court, through the Circuit Court for the County of Washington by virtue of the Act of Congress of February 13, 1801, and by the act of Congress subsequently passed, the matter in dispute exclusive of costs, must exceed the value of $1,000 in order to en title the party to an appeal.

The commission to be allowed to the executor or administrator is submitted by law to the discretion, of the court upon a consideration of all the circumstances, and it was obviously the intention of the legislature that the decision of the orphans' court should be final and conclusive.

The Court being satisfied by an examination of the evidence contained in the record of the proceedings of the Orphans' Court of the County of Washington relative to a claim made upon the estate of the testator by the executor that the said evidence was too loose and indefinite to sanction the claim, disallowed the same and reversed the decree of the orphans' court which allowed the claim.

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 percent commission on the inventory of the deceased's estate amounting to $2,358.70 and $1,200 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 percent nor exceeding ten percent on the amount of the inventory."

Act of Maryland, ch. 101. sub. ch. 10. sec. 2.

Page 26 U. S. 563

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 favor 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 endeavored 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.

Page 26 U. S. 564

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