Badders v. O'Brien

Schmucker, J., delivered the opinion of the Court. The appeal before us was taken from orders of the Orphans’ Oourt of Baltimore City dismissing the exceptions of the appellant to the allowance of two items in an administration account which had been passed in that Court. It appears from the record that the account was passed in the usual ex parte form on April 29th, 1909, by William J. O’Brien as executor of the last will of Joseph Zane. The appellant was named as a legatee in the will and, in her right as such, she filed a petition in the Orphans’ Oourt, a few days after the passing of the account, excepting to the allowances therein made of $1,000 as the sum for which a suit at law against the estate had been compromised by the executor and the further sum of $500 as a fee to his counsel for their services in that suit.

On the-9th of April, 1909, before the presentation of the account in the Orphans’ Court, the executor filed a petition therein alleging that- Gertrude Flaherty had sued him in the Baltimore City Court for $15,000 for services rendered' to the testator as housekeeper, nurse and companion from July 15th, 1903, to March 21st, 1909. He further alleged that he had, under an order of the Orphans’ Oourt, employed counsel to defend the suit who had advised him to accept a proposition made by the plaintiff’s counsel to compromise the ⁴⁵³ suit for $1,000 as a liquidated amount to be allowed to her in the administration account to be passed by him and that he himself was satisfied after careful investigation that it would be to the interest of the estate to make the compromise. The petition was signed by Mr. O’Brien and Isaac S. George as attorneys for the executor and it was verified by Mr. O’Brien’s affidavit as executor. Upon that petition the Orphans’ Court passed an order authorizing and directing the executor to compromise and settle the suit and claim of Gertrude Elaherty as prayed in the petition and according to the terms therein set forth.

The claim for $1,000, the amount of the compromise, was accordingly presented to the Register of Wills and by him passed in the usual form and allowed by the Orphans’ Court as a credit to the executor in his adiirinistration account. The counsel fee of $500 to Messrs. O’Brien and George- appears in the account as allowed “as per order of Court dated April 27th, 1910,” but there is no copy of the order in the record so that we are unable to say whether the fee was allowed by order absolutely or subject to exception. After the filing of the exceptions by the appellant- the Orphans’ Court heard testimony upon the issues thereby presented, the petitioner assuming the burden of establishing the truth of the allegations of her excepting petition.

Her brief states that she was directed by the Court to assume that burden, but the record is silent upon that subject. Testimony was taken in support of and against the exceptions. The evidence establishes the fact that Miss Elaherty lived with the testator, who was a victim of chronic locomotor ataxia and almost helpless, for more than six years up to the time of his death and that during that time she rendered services in taking care of his house and of him personally. The evidence on her behalf tends to show that she did the domestic work in the house and waited on and nursed him during her entire stay with him.

On the other hand the evidence for the exceptant, while it shows that Miss Elaherty ⁴⁵⁴ rendered some service in the testator’s house and to him personally, tends to prove that she maintained immoral relations to him and that both of them were at times intemperate and led coarse lives. We refrain from a consideration in detail of the evidence because taken as a whole it satisfies us that her suit against his estate was not devoid of a substantial- foundation, and that therefore the