John v. John

122 Pa. 107 | Pa. | 1888

Opinion,

Me. Justice Claek: :

This action of assumpsit was. brought by Kersey T. John, one of the executors of tlie last will and testament of Samuel John, late of ShamoMn, deceased, against Ulysses F. John, his co-executor, to recover his equal share of the commissions charged in their several separate accounts filed and confirmed by the Orphans’ Court, under an alleged agreement between them to this effect: The plaintiff, Kersey T. John, alleges that, after his father’s death, and after the letters were issued, he had an agreement with his brother Ulysses, that in the settlement of the estate the commissions earned would be divided equally between them; that Kersey should have half of the commissions allowed to Ulysses, and that Ulysses should have half of tlie amount allowed to Kersey, in the adjudication of their accounts respectively. The existence of this agreement, which is positively asserted on the one side, and as positively denied on the other, depends wholly upon the testimony o f the contending parties themselves, and the testimony of one is in direct contradiction of the other. In corroboration of tlie plaintiff, however, was the fact that the first account filed by Ulysses, and also the first and second accounts filed by Kersey, were stated in pursuance of the alleged agreement; for although tlie accounts were separate, yet there was an equal division of the commissions charged in each of them respectively, and in this form the accounts were confirmed; but in the second, supplementary, and final accounts filed by Ulysses, and in the final account filed by Kersey no such division is made.

The whole amount of commissions to which the executors are entitled bas been adjudicated by the Orphans’ Court, the total allowance on all the accounts being $3,892.64; of this sum Ulysses had in his hands $3,087.18 and Kersey $805.46. In the absence of any parol proof to a different effect, we think the parties were entitled, prima facie, according to the showing of their several and respective accounts; that is to say, Ulysses, upon his first account to $622.96, upon the second and supplementary account $397.01, upon the final account $1,444.25, and upon the first and second accounts filed by Kersey $207.53; in all $2,671.75. Upon tlie same basis Kersey was entitled, prima facie, on Ms first and second accounts to $207.53, on third account $390.40, and on Ulysses’s first account $622.36; in all $1,220.89.

It is said that the court in the adjudication of the account could not, and therefore did not, apportion the commissions between the executors; that the question for the court was simply what was a reasonable compensation for the whole services ; and that the executors might settle and divide as they chose; — that was their concern. However this may be, the measure of their compensation for the whole services, not only as between them and others interested, but as between themselves, was fixed by their accounts, and as their accounts were separately stated and filed, they were, prima facie, entitled after confirmation as set forth therein respectively; it is fair to assume that in these separate accounts each of the accountants claimed and received a proper credit. The whole question then was upon the existence of the alleged parol agreement to share the commissions equally. Whether or not there was any such agreement was of course for the jury; if there was, and letters testamentary were taken out and responsibility incurred in pursuance of that agreement, there was certainly a sufficient consideration to support it.

The defendant offered to show what proportion of the labor and responsibility had been performed or incurred by him in the settlement of the estate. This we think was not material to the issue. The plaintiff’s claim was founded upon an express agreement; if that was established to the satisfaction of the jury, the plaintiff had a right to recover, otherwise not. It was of no consequence, therefore, what proportion of the work was done by either of the accountants ; their compensation was fixed either by their accounts or by the agreement, if any existed. Nor could the testimony offered have any bearing upon the question whether or not the agreement was made. If it was made at all, it was made just after their father’s death, and before any of the services were rendered; the matter contained in the offer could, therefore, have very slight, if any, tendency to contradict the plaintiff, or to show that the contract alleged was unreasonable or impracticable. Especially is this so, in view of the fact alleged by .Kersey and not denied, that Ulysses' took possession of all the papers and documents involved in the settlement of the estate, and refused, absolutely, to permit Kersey to have any access to them. Under such circumstances it would certainly be expected that Ulysses would make the larger share of the collections.

The burden of proof was on the plaintiff, but his testimony if believed was sufficient in law to entitle him to recover. The veracity of the witnesses and the conflict in the evidence was for the jury.

Judgment affirmed.