Daskais v. Kline

Grason, J., delivered the opinion of the Court. Louis Kline died April 9, 1945, at Cumberland, Allegany County, Maryland. He was a merchant and conducted a store at what is known as 19-21-23 Baltimore Street in that City, which he owned subject to a mortgage of $25,000, at the time of his death. He married twice.

Sayde K. Daskais is his daughter by his first marriage. She and her husband are the appellants. His second wife, Carrie M. Kline, appellee, was married before, and has a daughter by the former marriage, a Mrs. Hendricks. Shortly before Mr. Kline’s death he sold his store business to his step-daughter, Mrs. Hendricks, arid rented to her the store property, and she, from that time on, has conducted the store formerly con ⁵⁴³ ducted by her step-father.

Mr. Kline left a will in which he named his daughter, Mrs. Daskais, and Mr. William M. Somerville, as executors. Under his will he bequeathed a 60 per cent, interest in this store property to his daughter, Mrs. Daskais, and 40 per cent, therein to his wife, Carrie M. Kline. Mrs. Daskais did not live in Cumberland, but resided in Chicago, Illinois, and did not qualify as executor under her father’s will. Letters testamentary thereon were granted to Mr. Somerville.

Mr. William C. Walsh was employed by Mrs. Daskais to represent her in the settlement of the estate. She came to Baltimore and Cumberland to advise with Mr. Walsh. He wrote her on June 4, and on June 5, 1945, after he had been in communication with Mr. Kemper, who was the lawyer representing Mrs. Kline. On June 20, 1945, Mr. Morris H. Daskais, the husband of Sayde K. Daskais, and one of the appellants, wrote Mr. Walsh.

Since that time Mr. Daskais represented his wife in the matter and conducted all correspondence with Mr. Walsh in reference thereto. There were a number of complications in the settlement of this estate. Mrs. Hendricks gave notes to Mr. Kline when she purchased the business, which were held by the executor, to which she claims certain set off. Both she and her mother filed claims against the estate.

There was also the matter of what rent Mrs. Hendricks should pay for the store property. The roof and floors of this property were out of repair, which gave rise to a controversy of who should make the repairs. Mr. Walsh represented the executor in the matter of these claims, and he also represented Mrs. Daskais. Mr. Kemper has offices in Baltimore City and he associated with him in the matter Mr. Lippel, an attorney in Cumberland.

An extended correspondence was carried on between Mr. Walsh and Mr. Daskais, and Mr. Kemper and Mr. Lippel. These attorneys were attempting to settle the differences between the parties and avoid litigation. On April 23, 1946, Mr. Dakais wrote a letter to Mr. Walsh, in which he proposed the following settlement: ⁵⁴⁴ “a cash settlement of $6,500—to Sayde for her interest in the estate, all benefits and obligations to be assumed by Mrs. Kline and Mrs. Hendricks.” On May 3, 1946, Mr. Walsh wrote to Mr. Lippel: “In accordance with our telephone conversation of yesterday, I am writing as attorney for Mrs. Sayde Daskais to advise that Mrs. Daskais will sell her 60% interest in the Kline Building on Baltimore Street, Cumberland, Maryland, to Mrs. Kline, or her nominee, for the sum of $6,500.00 cash, with the understanding that Mrs. Kline shall then assume all of the obligations owed by the estate of her husband, the late Louis Kline, and will also be entitled to all of the assets of said estate, including the $2,000.00 cash settlement proposed by Mrs. Hendricks as a payment of the balance due by her on the purchase of the Kline Clothing business, and any and all accumulated rents on the Kline Building.” The letter goes on to say: “So far as I have been able to ascertain them, the claims against and the obligations of the Louis Kline estate total approximately $2,000.00, and the commissions of the Executor, the costs in the Orphans’ Court, and attorneys’ fees will amount to about a thousand dollars, so that the total amount to be assumed by Mrs. Kline under the above proposal would be approximately $3,000.00, plus the $6,500.00 cash payment to Mrs. Daskais, and in return for this she would secure the entire title to the Kline Building on Baltimore Street. “While I think the above estimate of $3,000.00 covers all of the obligations of the Kline estate, I am not able to guarantee this, and in authorizing me to offer to sell her interest for $6,500.00 cash, with Mrs. Kline to assume the obligations of the estate, including commissions, costs and attorneys’ fees, Mrs. Daskais did not set any amount on such obligations, but provided that Mrs. Kline was to assume them all, and this offer is made on those terms. However, since Mr. Kline has been dead for almost a year, and there have been no unexpected claims filed in the Orphans’ Court up to this time, we ⁵⁴⁵ could readily make practically certain of the amount of the obligations by checking at the Orphans’ Court and stating the account and closing the estate at the time the settlement was made. “I understand you will give me an answer on this matter by Monday, if possible, and I trust that we may at long last be able to get the matter disposed of.” On May 14,1496, Mr. Lippel wrote to Mr. Walsh : “On May 3, 1946, you wrote me that Mrs. Sayde Daskais would sell her 60% interest in the Kline building known as No. 23 Baltimore Street, this City, to Mrs. Carrie Kline for the sum of $6,500.00 in cash, Mrs. Kline to assume all obligations due by the Estate of L. Kline, deceased, and to be entitled to all of the assets of said Estate plus any and all accumulated rents on the building. “Mrs. Kline hereby accepts the offer contained in your letter and will arrange to pay the purchase price of $6,500.00 in cash within the next 60 days and sooner if possible. “If you wish, you may prepare an agreement of sale or it is satisfactory to me if you will have Mrs. Daskais and her husband execute a deed and hold it for delivery upon payment of the purchase price within the time noted above.” On May 15, 1946, Mr. Walsh wrote a letter to.

Mr. Lippel, in which, among other things, he stated: “I also expect to ask the court (Orphans’ Court) for a counsel fee of $750.00 and I estimate the court costs will be about $50. Some time ago you told me that Mr. Kemper had suggested objecting to the amount of my fee, and while I feel confident that in view of all the work done and time consumed in this matter the court would allow me the above fee, I do not want to make a settlement of the matter and then have a fight about the fee.” On May 23, 1946, Mr. Kemper wrote a letter to Mr. Lippel, which he directed to be sent to Mr. Walsh, which was done on May 31, 1946. In this letter of May 23rd Mr. Kemper stated to Mr. Walsh: “On May 3, 1946, you ⁵⁴⁶ offered to sell Mrs. Daskais’s 60% interest in the Kline Building for $6500. cash ‘with the understanding that Mrs. Kline shall then assume all of the obligations owed by the estate of her husband,—.’ Your offer was accepted unconditionally by Mr. Lippel’s letter of May 14, 1946, in accordance with instructions sent by me.” The letter then engaged in discussions about the. proposed fee of $750 to Mr. Walsh, to be paid as part of the costs in the Orphans’ Court in the settlement of the Kline estate. On May 31, 1946, Mr. Walsh wrote a long letter to Mr. Kemper, in which he stated: “* * * I do not wish to be put in the position of closing this matter, and then being compelled to have a fight and perhaps litigation over my fee, and since Mrs. Daskais understood that my fee would be paid by the estate, and our offer clearly stated this, and since you now state that you will object to the estate paying the fee, I think it proper that the settlement be held up until this matter has been cleared up.” On June 5th Mr. Kemper replied to this letter.

On June 10, 1946, Mr. Lippel wrote Mr. Walsh the following letter: “I have been asked to write you the following: “Under date of May 3, 1946, you wrote as counsel for Mrs; Sadie Daskais offering to sell .her 60% interest in the Baltimore Street property of the late Louis Kline to Mrs. Carrie Kline or her nominee for $6,500.00 cash under the conditions set forth in your letter. “On May 14, 1946, I wrote you accepting this offer. I am now holding the purchase price of $6,500.00 with instructions to deliver a check for the same upon receipt of a deed conveying a clear title to Mrs. Daskais’s interest in the property. The deed is to be made to ‘23 Baltimore Street Corporation.’ I will appreciate it if you will let me have a copy of the deed as soon as it is prepared. I will immediately examine the title and if I find it merchantable, I will probably be ready to close this transaction by the time you have the deed back from Chicago. ⁵⁴⁷ “Mr. Kemper has asked me to tell you also that he does not regard the determination of your fee as any hindrance to the closing of this transaction; if the payment of your fee cannot be straightened out, that you have your recourse by filing a petition in Orphans’ Court.

I am writing you only as instructed.” On July 16, 1946, the Bill of Complaint in this case was filed. After setting out many of the facts narrated, it prayed: “1. A declaratory judgment that the attorney’s fee to be paid by complainant means that complainant shall pay such fees as may be due the attorney to the executor of the Estate of Louis Kline, Deceased, and does not mean such fee as may be due by defendants to their own attorney for services performed by said attorney for said defendants individually. “2. That the offer of defendants to sell their said sixty (60%) per cent, interest in said Baltimore Street property may be specifically enforced and that said defendants may be required to convey the same unto your complainant; that if said defendants refuse to execute a deed, that a trustee or trustees may be appointed by this Honorable Court to execute the same. “3.

That your complainant may have such other and further relief as the nature of her case may require.” Upon this bill and exhibits, the court passed a nisi order. On July 18th appellants demurred to the bill. The first and second reasons for the demurrer in this case are that the bill of complaint is not within Chapter 724 of the Acts of 1945 of the General Assembly of Maryland, which is the Declaratory Judgment Act, and third, the Statute of Frauds is interposed. This demurrer was overruled on July 26, 1946, and on August 13th the appellants filed their answer to the bill, in which they substantially deny its allegations.

The case was heard in open court and on October 3, 1946, the court decreed that the appellants shall, within the period of 60 days, execute a deed of their respective interests in the property in question unto Carrie M. Kline, her heirs and assigns, ⁵⁴⁸ in fee simple, and deliver the same unto the Clerk of the Court for