Frick v. Denison

Pearce, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore County authorizing Charles 0. Denison and Jasper M. Berry, Jr., executors of Robert M. Denison, deceased, “to employ Osborne I. Yellott as their counsel to aid them in stating a new first administration account and in the further administration of said estate, * * * and to pay to said ²⁹⁷ Osborne I. Yellott out of tbe assets of the estate, the sum of three hundred dollars, the same to be in full compensation for all services heretofore rendered by him to the executors in their capacity as such, and to cover, as well, all services which may be hereafter rendered by him in the preparation of the new first administration account which the Court has this da,y on another petition of said executors, ordered to he stated.” In order to a proper understanding of the merits of this appeal, it will he necessary to state somewhat in detail the character of the administration and: the particular features of the settlement of the estate which have led to this controversy as to the allowance out of the estate of this counsel fee to the executors. Robert M. Denison died in April, 1909, possessed of a handsome real and personal estate, and leaving a last will and testament by which he devised and bequeathed to his two sons, Robert 11.

Denison, Jr., and Charles C. Denison as joint tenants a certain farm in Baltimore county with all the personal effects thereon, and to his two daughters, Mrs. Mary C. D. Frick and Mrs. Rebecca C. D. Warfield, as tenants in common, three parcels of land in Baltimore City, and the whole residue of his estate real and personal to his said four children, share and share alike, they being his only heirs at law, and his wife having predeceased him. He directed in his will, however, or expressed his wish, that none of the property devised or bequeathed by the residuary clause should he disposed of before January 1st, 1914, without the consent of each of said children, and he appointed Charles 0. Denison and Jasper M. Berry, as his executors. This will was admitted to probate April 27th, 1909, letters testamentary were granted same day, and on the same day also, an agreement under seal between the said four children was filed with the will, that in the distribution to be made of said personal estate after payment of debts and expenses, one-fourth part thereof should he distributed to each child and ²⁹⁸ that the real estate should he appraised as therein provided, and divided into four equal parts, and that one-fourth part thereof as so divided, should by interchange of conveyances, be vested in each child in such manner as he or she should designate, and the executors assented in writing to the carrying out of said agreement.

The deceased had a large and valuable real estate in Baltimore City, and also had a farm in Queen Anne’s county and several farms in Baltimore county and álso in Anne Arundel county. In 1886 the real estate firm of J. M. Berry & Son, of which Jasper M. Berry, Jr., was a member, took charge of the collection of the rents of the Baltimore City property, except one parcel, and since the dissolution of that firm by the death of the senior member in 1906, Jasper M. Berry, Jr., has conducted the business under the firm name and continued to collect said rents up to the death of Mr. Denison. Charles C. Denison for about five or six years before his father’s death, acting under a power of attorney from him, had charge of the real estate other than that in Baltimore and collected and accounted for the rents therefrom. On • April 19th, 1910, the executors presented to the Orphans’ Court an account which they intended and believed to be a correct and final administration account, and which was passed by the Court on that day, showing aggregate receipts of over $180,000, and a balance for distribution of over $147,000, accompanied by a distribution to each of the four children of $36,857.22, which distribution was ordered by the Court, and the executors were ordered to grant and convey to the respective distributees the several leasehold properties included in the said distribution.

Releases were prepared at the same time by Mr. D. H. Emory, who had been employed by an agreement of all the parties, and these were presented for execution. Robert M. Denison, Jr., executed his release, it being understood that certain small errors in the account were to be adjusted without restating the account, and desired the distribution made ²⁹⁹ at once, and the executors were also desirous of making immediate distribution, but desired the releases to be concurrently delivered, the above-mentioned small errors to be adjusted at the same time. The administration account did not in terms purport to be a final account, though supposed by the executors to be a complete administration of the estate, subject to the correction of said small errors, and the releases tendered for execution exonerated the executors from any suit or demand “for or on account of the said sum of money paid as aforesaid, and the distribution as aforesaid.” On May 14th, Ool. Clotworthy wrote the executors that he had been retained by Mrs. Erick and Mrs. Warfield to examine the administration account, and he specified certain matters to which he objected, and in regard to which he desired information.

These matters were as follows: 1. Receipts from board of horses at the home farm, which were thought to be too small. 2. An amount of $642.51 as received from J. M. Berry & Son, representing collections of rents. This was thought to be too small, and a general statement of the accounts was desired relating to these rents during the existence of the agency. 3.

That commissions were erroneously allowed to the executors on $2,025 representing items in which the decedent had only a life estate; also on $4,720, representing an error in carrying out the appraised value of certain securities, aggregating $134.90. 4. Amount paid for servants’ wmges, $135, supposed to be inadvertently allowed after the death of Mr. Denison. 5. Mr. Emory’s fee of $1,000, which it was objected should not be allowed out of the estate. 6. An allowance of $5,213.30 to the Rational Marine Bank, thought to require explanation in view of Mr. Denison’s large means. 7.

An inquiry as to a quantity of barley which he was informed had been sold but not accounted for. ³⁰⁰ . Mr. Berry replied, on May 20th, that the items for horse hoard included all of which he had any information; he explained that four days previous to the death of Mr. Denison J. M. Berry & Son paid out $1,510. 92 on account of Burnt District benefits to certain property of Mr. Denison thus materially reducing the amount in their hands. He conceded the error in commissions offering to correct it by cheeks to each party for a proportionate amount. He replied that no wages were paid servants after Mr. Denison’s death.

Explained that Mr. Emory’s employment was under an agreement between the heirs filed in Court and providing for its payment out of the estate. Explained that the claim of the Marine Bank was for a note representing a loan to> Mr. Denison duly proved by the officers of the bank, and that his information was that all the barley had been fed to the stock. On May 19th Gen. Warfield wrote Mr. Berry inquiring if partial releases could not be accepted so that the leasehold property could be turned over .pending the arrangement of other matters, and on the 20th, Mr. Berry replied that in view of Col.

Clotworthy’s communication they deemed it best for all concerned that the distribution when made should be final, and on the 24th of June wrote General Warfield that he had concluded it was best for all concerned that Col. Clotworthy’s office should take up with Mr. Yellott as their counsel all matters arising out of said' administration, to which General Warfield acceded by letter of June 27th, 1910. Erom this date down to January 16th, 1911, the matter drifted along in correspondence, when Messrs. Lemmon and Clotworthy wrote the executors that unless distribution was made by the 23rd inst., they would be compelled to take such action as they should deem advisable.

In the meantime the executors had furnished Col. Olotworthy’s office with a copy of all the accounts between 1906, the date of the dissolution of the firm of J. M. Berry & Son, and the death of Mr. Denison in 1909; with an itemized account of the board of horses; with cancelled checks on National Marine Bank and seven books of check stubs from 1902; also with a statement ³⁰¹ of barley sine© ascertained to have been sold, amounting to $93.60 and constituting an error to that extent. In tbe letter of January 13th, 1911, complaint is made that Messrs. Lemmon and Clotworthy are not satisfied with “certain items in the account filed — particularly the item of $642.51 as paid' by J. M. Berry & Son — also receipts from board of horses and barley.” Mo mention was made in that letter of any other disputed items mentioned in the letter of May 14th, and it would seem from that fact, and from the absence of any allusion in the testimony to the other items in the letter of May 14th, that those objections were abandoned.

Tbe letter of January 13th, however, does say that they contend “the estate should be larger” and it does appear from tbe testimony of Mr. Buck of the firm of Lemmon and Olotworthy that there has been discovered an item of $309.92 in the accounts with J. M. Berry & Son which is charged against Mr. .Denison when it should have been credited to him, thus making a difference of $619.84 against Mr. Denisons estate. The executors conceded the error of $134.90 in the commissions, and of $93.60 for barley sold, and offered to settle these items by checks for one-fourth of the total amount to Mrs. Erick and Mi’s. Warfield upon execution and delivery of the releases prepared, hut this was refused because General Warfield states that Mr.' Berry told him lie would consider the releases to he full and final