74 Ky. 639 | Ky. Ct. App. | 1876
delivered the opinion oe the court.
This record is from the Louisville Chancery Court, on an appeal taken by John T. Bate from a judgment rendered against him in that court. The action was instituted in the court below to surcharge a settlement made in the Jefferson County Court by the appellant as the administrator with the will annexed of his brother G. B. Bate. Robert T. Bate, one of the devisees, was the original plaintiff, but many of the other devisees, by an answer and cross-petition, united in the prayer of the petition.
The devisor, G. B. Bate, was a bachelor, leaving at his death several brothers and sisters surviving him, and the owner of a valuable personal estate consisting principally of three notes for large amounts executed to him for a tract of land sold a short time prior to his death. The personal estate accounted for by the administrator was of the value of $105,250, upon which he was allowed a commission, in his settlement with the county judge, of $6,300.
There was a contest between the appellant John T. Bate and the appellee Robert T. Bate (both of them brothers of the devisor), in the Jefferson County Court, as to who should execute the will. Robert, being older than his brother John, •claimed the right to qualify as administrator; and as an in
The proof is conclusive that the appellant, after this suggestion had been made by the county judge, declined to qualify with his brother, and without giving him notice of this fact sought frequent interviews with some of the devisees, and particularly. with his sister, Mrs. Gray, and promised that if they would recommend him he would make no charge for his services and claim only his actual expenses. He enlisted most of the devisees in his behalf upon his voluntary statement and promise that he would make no charge, and obtained from some of them — or his son did for him — their signatures to a petition asking the county judge to appoint him. The son of the appellant also employed an attorney on behalf of his father and the heirs who favored his appointment to present his claims for the position to the county judge. The appellant, upon this voluntaiy offer on his part, at the instance of many of the devisees or those representing them, to whom the promise had been made, was appointed and qualified as administrator with the will annexed.
The evidence conduces strongly to show that his brother Robert was expecting to qualify with him, as intimated by the court at a former sitting, and was not aware of the intention to appoint his brother until the day he qualified. They were both men of business habits, and fully competent to administer the estate.
There is testimony in the record tending to show that some of the devisees objected to the appointment of Robert T. Bate
He gave also as a reason why he desired to qualify that he was indebted to the estate, and if another qualified he would have to contribute with the rest in the payment of the commissions allowed by law.
The land notes, three in number, collected by appellant amounted to near $78,000, and his own note and that of his sons, together with what was owing by some of the devisees, added to the land notes, constituted near $90,000 of the amount of personalty in his hand§, and upon which he was allowed a commission of six per cent. The land notes were promptly paid in bank at maturity, and, so far as appears from this record, there was but little trouble in settling the estate.
Upon these facts the chancellor adjudged that the appellant was entitled to no compensation for his services, and this is the only question of importance presented by the appeal.
It is argued by counsel for appellant that if the facts in this case constituted a contract between these parties in regard to appellant’s compensation it was not obligatory — first, for want of consideration;.and secondly, that it was void, being in violation of a well-recognized rule of public policy.
It must be conceded that a mere promise to aid or procure an office for another is without consideration, nor can an action be maintained upon such an agreement based upon a consideration. Such contracts, being regarded as interfering with the due course of public justice, arc held invalid and as being contrary to public policy-
The statute designates the persons first entitled to administration, and when they decline to qualify or are unfit for the position the court in its discretion selects some suitable person for the place. Those interested are generally consulted and their wishes regarded as to the person to be appointed when possessing the requisite qualifications, and we see no reason why the court might not consult their wishes also as to the matter of compensation. It is the duty, however, of the court to make the allowance in all cases in settling with the fiduciary, and no commission can be allowed exceeding that fixed by law, so as to affect the rights of those who, by reason of their disabilities, are in no condition to act for themselves; but where the parties interested and capable of contracting have by an agreement fixed upon a fair and reasonable compensation the court should adopt it, so far as it affects their rights, as the amount to be paid the fiduciary.
In the case of Clark v. Constantine (3 Bush, p. 652) Clark
As said in that case, the court, instead of presuming that the party selected to qualify was incompetent for the position and the contract made for a corrupt purpose, in the absence of any fraud or overreaching, should indulge in the presumption that the object in offering the compensation was to obtain an administrator of business capacity and integrity of purpose. Although the appellant upon the facts of this case could not have maintained an action against the devisees fora failure on their part to recommend him to the county court, or the devisees an action against him for declining or refusing to qualify as administrator, still, having voluntarily assumed the burden of administering as an act of benevolence to the devisees, who were his brothers and sisters, and having procured their aid in obtaining the appointment for him upon his repeated promises that he would make no charge, he ought not to be adjudged compensation. His brother had announced in open court that if permitted to qualify as administrator he would make no charge against his' sisters, and to defeat this liberal offer on the part of his brother, appellant announced his willingness to accept the appointment without any compensation for services, and afterward, under an express stipulation to that effect, by the aid of the devisees was permitted to qualify. His relationship to the parties and his desire to save his own burden of the expense was at that time the inducement for this gratuitous undertaking. His sisters would have saved their part of the commission if administration had been granted their brother Robert; and
•In the case of Mason against Roosevelt and others (5 Johnson’s Chancery Reports, p. 534) the administratrix of an estate committed the entire possession and management of the estate to an agent and attorney in fact with power to settle, collect debts, etc. This agent collected and disbursed several thousand dollars. In an action for a settlement by the heirs it appeared that the agent was related by marriage to the family, ■ and had assumed to control the estate at the request of the administratrix, and from motives of humanity and benevolence alone, as he had been a friend to the intestate. The court held that he was not entitled to any commission.
In McCord against Blewitt (2 McCord’s Chancery Reports) the widow and son-in-law of the deceased administered. The court said: “On the question of commissions the court is unanimously of the opinion that the executor is nht entitled to them. He voluntarily undertook the duty under the express stipulation that he would not charge them, and he can not now be permitted to violate that contract; that which was expressly declared to have been intended as a gratuity shall not now be converted into a demand.”
It is immaterial whether the promises made by appellant were made to all the devisees or not. It is certain they were
As to the questions made on the cross-appeal of the appellees, the evidence conduces to establish a gift of the personal property, the value of which is sought to be recovered, or at least to present such a state of case as relieves the administrator from responsibility therefor.
The judgment of the chancellor is affirmed on both ,the original and cross-appeal.