Newton v. Johnson

¹⁶⁸ Mitchell, J., delivered the opinion of the Court. On January 5th, 1934, Grace S. Vance and Thomas F. Johnson were granted letters of administration ;upon the estate of John Miles Savin, late of Worcester County, Maryland, by the Orphans’ Court of said county. The administrators duly qualified as such, and proceeded with the administration of the estate, the inventory of the personal property showing an aggregate of $18,144.96. Subsequently it developed that the deceased did not die intestate, and on May 29th, 1934, his last will and testament was filed! and probated in said Orphans’ Court, Wherein the then deceased widow of the testator, Jennie Robb Savin, was named as sole executrix under the will.

Following the probate of the will, the previously granted letters of administration were on the same date revoked by the Orphans’ Court, and letters of administration d. b. n. c. t. a. upon the estate were forthwith granted to the said Thomas F. Johnson. On August 21st, 1934, the Orphans’ Court passed an order fixing the commissions of the said administrator, who was allowed a commission on the “whole amount of assets accounted for by him in the settlement of this account.” This order was rescinded by a subsequent order passed on April 20th, 1937, wherein the said administrator was allowed a commission of ten per cent., out of which he was “to pay all counsel fees and all extraordinary expenses incurred in the administration of this estate.” It is from this latter order and from a subsequent order passed on May 4th, 1937, overruling the exceptions of the appellants to said order of April 20th, 1937, that the appeal to this court has been taken, raising, as it does, the single question: Whether the action of an orphans’ court in fixing commissions of an administrator, within the limitations prescribed by law, is subject to review in. this court? The law which vests orphans’ courts of this state with discretionary power in the matter of fixing commissions of administrators, within limitations definitely prescribed by the law, finds its origin in the earliest statutes deal ¹⁶⁹ ing with powers of orphans’ courts, and. is now incorporated in section 5, article 93, of the Code (Supp. 1935), which, among other things, empowers such courts to fix commissions to administrators “at the discretion of the Court not under two per cent, nor exceeding ten per cent, on the first Twenty Thousand Dollars ($20,000) of the estate, and on the balance of the estate not more than two per cent.” In the case of Wilson v. Wilson, 3 G. & J. 20 , this court, after citing the then minimum and maximum rates of commissions prescribed by law to be allowed executors and administrators, and the fact that the orphans’ court had fixed commissions within those limitations, said: “We do not think we have any power to disturb the decision, or to review what has been done in that respedt. The various circumstances determining the amount of commission proper to be allowed, cannot appear to this court, and every case must be governed by its own peculiar circumstances, subject only to the restrictions already mentioned.” And, in the numerous succeeding cases that have been before this court involving commissions allowed executors and administrators, we find no semblance of a departure from the conclusion reached in that case.

In other words, it has been uniformly held that it is not within our province to control, or review on appeal, commissions that have been fixed by orphans’ courts within the limitations prescribed by law. In re Estate of Baxley, 47 Md. 555 ; Handy v. Collins, 60 Md. 229 ; Renshaw v. Williams, 75 Md. 498 , 23 A. 905 ; In re Estate of Watts, 108 Md. 696 , 71 A. 316, 319 ; St. Mary’s Orphan Asylum v. Hankey, 137 Md. 569 , 113 A. 100 ; Brown v. Tydings, 149 Md. 22 , 130 A. 337 ; McCrea v. Roberts, 89 Md. 238 , 43 A. 39 ; Dalrymple v. Gamble, 68 Md. 156 , 11 A. 718 . On the other hand, however, it has been uniformly held by our predecessors that this court has the power to review on appeal a decision of the orphans’ court that transcends the restricted power of the latter. Renshaw v. Williams, supra, and St. Mary’s Orphan Asylum v. Hankey, supra. ¹⁷⁰ It is contended by the appellants that the Orphans’ Court of Worcester County had no power to allow the administrator full commissions because he had “predecessors,” “may have successors,” and “had not stated a final account,” and the case of St. Mary’s Orphan Asylum v. Hankey, supra, is then cited in support of that contention.

But in that case, as heretofore stated, the amount allowed by the orphans’ court to successive administrators of the estate, for commissions, in the aggregate was in excess of the maximum 'limitation—approximately twenty per cent, of the whole estate, while in the case before us the commission allowed does not exceed the maximum rate prescribed by law. i In the case of Gwynn v. Dorsey, 4 G. & J. 453, it is stated: “The Orphans’ Courts have a limited discretion with regard to the amount of the administrator’s commission, and no good reason can be assigned why they should not have like discretion, as to the time and manner of making the allowance.” Since the decision in that case, which was rendered in 1832, for the purposes of revenue it is provided in section 102 of article 81 of the Code (Supp. 1935) that: “The several orphans’ courts shall fix the commissions of executors within 12 months from the grant of administration, and in all subsequent accounts wherein executors shall charge themselves with further assets, * * * and all commissions so fixed shall be