Berger v. Clendinen

Briscoe, J., delivered the opinion of the Court. This controversy arises upon exceptions to an auditor’s report and accounts, distributing that part of the estate of Mary E. Fechtig, of Baltimore City, in the hands of Samuel K. Dashiell, trustee, who is one of the appellants, and was due from the sale of certain houses, which had been purchased by Thomas R. Clendinen, the appellee. The residue of the estate had been distributed by a previous audit, dated the 21st of May, 1896, and ratified by the Court. A statement of the facts will be necessary to a clear understanding of the case.

Mary E. Fechtig died sometime in the year 1893, leaving a last will and testament in which she disinherited her relatives and devised her entire estate to strangers in blood. The will was successfully contested by her heirs at law. It appears by an agreement and assignment in writing between the heirs at law and Mr. Thomas G. Hayes, of Baltimore City, who was employed to caveat the will, that the latter was to receive for his professional services, if the caveat to the will was sustained, a contingent fee of one-fourth of the entire estate. Mr. Clendinen, the appellee, was employed by Mr. Hayes to assist in this litigation.

After the will was set aside, the Circuit Court of Baltimore City assumed charge of the distribution and settlement of both the real and personal estate. The appellant, Mr. Dashiell, was appointed trustee for the sale of the real estate and was also administrator of the personalty. In the auditor’s report and account A, Mr. Clendinen, the appellee, was allowed the sum of $2,371.86, as assignee of Mr. Hayes, for the contract and assignment. It further appears that certain exceptions were filed to the ratification of the auditor’s account, and specially to the allowance of the $2,371.86 to Mr. Clendinen for the reasons as stated that the assignment under which the said Thomas R. Clendinen claims the sum of money has not ¹⁵³ been filed in the case, “ nor is there anything in the case which shows that he is entitled to this sum of money.” These exceptions were dismissed by the Court on the 21 st of May, 1896, after a hearing and argument and the report finally ratified and confirmed and the trustee was directed to apply the proceeds, according to the audit.

There was no appeal from this order and it stands unrevoked by any subsequent order of Court. Subsequently on the 12th of June, 1896, Mr. Clendinen filed a petition asking among other things for an account distributing the proceeds of the property purchased by him, and also for an accounting between himself and Mr. Dashiell, the trustee. This petition was answered by the trustee and, after testimony taken, the matter was referred to the auditor, and accounts D, E, F and G were stated. These accounts were rejected by the Court upon exceptions filed after testimony taken and argument had, and on the 26th of March, 1897, new accounts were directed to be stated in conformity with certain instructions of the Court.

In the order of Court the auditor was directed among other things, “ that in the restatement of the account between the said Samuel K. Dashiell, trustee, and the said Thomas R. Clendinen, as purchaser, that the said Clendinen as purchaser be allowed as credits on