Ohlendorf v. Kanne

Robinson, J., delivered the opinion of the Court. The main question in this case, is whether an agreement whereby one joint executor renounces his right to letters testamentary in favor of his co-executor, in consideration of being paid onerhalf commissions, is a valid agreement ? The appellee was unquestionably entitled, as joint executor, to letters testamentary, and upon the' settlement of ⁴⁹⁹ the estate he would have beeu entitled to one-lialf of the ■commissions. If he renounced this right in pursuance of an agreement with his co-executor whereby he was to receive one-half of the commissions, such renunciation is a ■sufficient consideration to support the contract.

In Bassett and Wife vs. Miller, 8 Md., 551 , and in the later case of Dolfield vs. Kroh, 62 Md., XIII of “Opinions Unreported,” it was decided, that a like contract by one entitled to letters of administration, was a valid contract which could be enforced in an action at law. If so, there is no reason why a contract made by an executor, should not be enforced. In the one case, the party renouncing was entitled to letters of administration by force of the statute, in the other he was entitled under the will'of the testator. In both the right relinquished was a vested right, of which the party could not be deprived without his consent.

Commissions, it is true, are allowed in consideration of ■services rendered in the settlement of the estate, and ■although such contracts are not to be encouraged, we see no sufficient grounds on which they could be declared invalid. There is a broad distinction between such a contract, -and'the one in Folck, et al. vs. Smith, 13 Md., 85 , whereby an attorney agreed to divide his commissions provided he was appointed trustee to sell the real estate. In that case, it was held that the appointment of a trustee was one resting solely in the discretion of a Court of equity, and there was, therefore, no consideration to support the contract. Here, however, the appellee was entitled as a matter of right to letters testamentary, and his renunciation of this right is a consideration sufficient to support the agreement.

The evidence, however, in regard to the agreement was ■conflicting. The proof in support of it rested entirely upon the testimon]r of the appellee, and his testimony was in •every particular flatly contradicted by that of the appellant. And although it was within the province of the ⁵⁰⁰ jury to believe tbe one and to disbelieve the other,