Piper v. Tuck

Bowie, C. J., delivered the Opinion of this Court. The appellant, the complainant below, by his bill filed 28th of January, 1860, charges that the testator of theappellees, employed him as his agent from the 1st of January, 1838, and he continued to act as such to the death of the testator, who died some time in January, 1857, and after-wards discharged the duties of agent until the 1st of January, 1859, for which there was due to the appellant $661.89, after allowing certain credits, with interest from 1st of January, 1859. That the testator promised to compensate him for his services, and on several occasions within three years prior to his death, renewed his promise, to wit: in 1855 and 1856. That being seized and possessed of real and personal property, on or about the 4th of May, 1855, he duly made his last will and testament, etc., and amongst other things, devised to the appellees ail his estate, real and personal, to be sold, and the proceeds to be disposed of as directed therein, and appointed the appellees his executors.

That one of the trusts upon which the real estate was devised to the executors, with power to sell the same, is the payment of the just debts of the testator, and that inasmuch' as the testator had promised, within three years prior to his death, to pay him for the services rendered, his claim was a just debt against the estate of the testator at the time of his death, not barred by limitations, and that he is entitled to be paid out of the proceeds of sale of the real estate which was devised to be sold. ²¹⁷ ■ That the testator died in 1857, leaving his will unrevoked, in pursuance of which the executors possessed themselves of the property and sold the real estate, or intend to do so, and applied the proceeds of sale to the discharge of certain debts due by the deceased, and in execution of the trust created by the will, but they have refused to pay the appellant’s claim, wherefore he prays an answer under oath, and that the claim be ordered to be paid out of the proceeds arising from the sale of " the real estate, and for o.ther and further relief. The will, which is exhibited as a part of the bill, after providing for his burial, declares it is his anxious desire to make suitable provision for his wife, and after mature deliberation, he has concluded it can best be done out of the proceeds of sale of his real and personal estate, which he.thereby directs to be made by his executors, whenever and on such terms as the Orphans’ Court may direct, with the exception of such parts as he may reserve or specifically bequeath ; and he devises and bequeaths bis estate to his executors and the survivors of them for the purpose of such sale. The subsequent items of the will distribute the proceeds in various amounts, after giving ten thousand dollars to his wife, and making various pecuniary legacies. No reference is made to his debts until the 18th item, which provides as follows: 18.' “I desire that the directions of my will may be carried out as soon after my death as may be practicable, regard being had to the interests of my devisees and legatees, in order that my just debts may be paid and my estate be closed without unnecessary delay.” He bequeathed all the residue of his estate to Samuel II.

Wright, and appointed the appellees his executors. Two codicils were subsequently made, which do not in any manner affect the question before us. The appellees’ answers, after admitting the execution of the will, the death of the ²¹⁸ testator, and the grant of letters testamentary to themselves, aver that they gave the notice required by law for creditors to file their claims ; that they have sold part of the land ; that they have no personal knowledge of any services rendered by the complainant. Nor do they believe-he- was employed as general agent for the management of the lands in, Allegany county.

They expressly deny that they ever employed him, as agent, and have no knowledge of any services rendered by . him for the estate, and are- advised that the- agency, if any> terminated, at the death of the testator. They deny that the will creates any trust for the- payment of the debts of the deceased, and aver that the- appellant, if he had any demand against the deceased, has a full- and ample remedy at law. They deny that their testator within three years- before-Ms death, or at any other time, promised to pay the said claim and if the appellant ever had any cause of action, against the deceased', or the appellees as executors, they aver the same was- barred by limitations at the time- of filing the bill,, and they crave the benefit of the-same as- fully as if formally pleaded. A general replication was filed, testimony taken and returned, and upon final hearing a decree passed dismissring the bill, from which this appeal is taken.

The agency for which compensation is sought, was an agency between the complainant and the defendant’s testator, which terminated with his life. No renewal or recognition of this-agency by the respondents is alleged, or any promise on their part to pay the supposed debt of their testator. The hill charges that the testator promised in 1855 and 1856, and within three years of his death, in conversations •with ether persons admitted his indebtedness,, but nowhere-. ²¹⁹ ¡alleges he so promised within three years of filing the bill-, ¡and shows no cause why the bill was not sooner filed. There is neither allegation er evidence of any promise or •admission by the executors of the will.

The latest evidence of promise or acknowledgment on the part of the testator, refers to July, 1856. This must be assumed to relate to services previously rendered, and cannot be construed so as to affect