William S. Nicholls, and Others, Appellants, vs. Thomas Hodges, Executor of Thomas C. Hodges, deceased

William S. Nicholls, and Others, Appellants, vs. Thomas Hodges, Executor of Thomas C. Hodges, deceased. The Orphans’ Court, by the testamentary laws of Maryland, has a general ■power to administer justice ip all matters relative to the affairs of deceased persons according' to law.. The commission to be allowed'to an executor'or administrator, is submitted to the discretion of the Court, and is,t© be not under five per cent., nor exceedirig ten per cent, on the . amount óf the inventory. (565} . If thé'executorhas a claim .on' the.estate of the deceased, it shall stand on an équal footing with other claims of the sanie nature. ■ {565} On .a plenary proceeding,- if either. party shall require it, the Court will direct’ an issue or .issues to be made up, and sent to a .court of law to be tried; and any person conceiving himself aggrieved by any judgment, decree, decision, or order, may appeal to the Court of Chancery, or tó a Court of taw; and in Máryland, the decision pf the Court to .which the appeals made is final.. {565}. The Supreme Court of the United States has jurisdiction of appeals from ' the Orphans’ Court, through the Circuit Court for the county of Washington, by yirtúe of the Act of Congress of February 13,18013 ..and by the Act of. Congress subsequently passed,, the matter in dispute, exclusive of - costs, must exceed-the value of $1000 in order to entitle the party to an appeal.' {565} . The commission to be allowed to the executor or administrator is submitted bylaw to the discretion of the Court, upon 'a consideration of all the circumstances,'and it was obviously the intention of the legislature; that the decision of the Orphan'S’ Court should be final and conclusive. {565} The Court being satisfied by an examination óf the evidence contained in the record of the proceedings of the Orphans’ Court of the county Of . Washington, relative to a claim made upon the estate of the testator by the executor,- that the-said evidence was too loose' and indefinite to sanction the claim, 'disallowed the same; and reversed the decree of the Orphans' Court which allowed the claim. {566}- . APPEAL from the Circuit Court' of Washington’county in the District of-Coliimbia. The defendant obtained letters testamentary on the estate of .Thomas C. Hodges deceased, and passed his accounts in the Orphans’Court of Washington county, in which he was allowed 10 per cent, commission on the inventory of tire deceased’s estate; amounting to §2358 70, and §1200 for services rendered by him to the deceased. The testamentary law of Maryland, under which this' commission was allowed, is.in these words “His commission, which shall be at the-discretion of the Court, not under five per cent, nor exceeding ten per cent, on the amount of the inventory.” — -Act of Maryland, ch. 101. sub. Ch-. 10. sect. 3,' The appellants, creditors of'the deceased’s estate, filed their .petition in'the Orphans” Court objecting to the allowance of these'claims; and upon the answer of the appellee and the testimony taken in the Cause, the Judge of the Orphans’ Qourt decided in.favour of .the .appellee, ~ and allowed these claims. ' From.this decision an appeal was prayed to the Circuit Court for Washington county,. where'the judgment of the Orphans’ Court was affirmed. iYom this decision this appeal was made. The deposition of William W.' Corcoran,. Philip. T. Berry, John S. Hare, James A. Magruder a,nd' Isaac S.- Nicholls were. taken, and were sent up with.this, record. These depositions were intended to provej that the board and expenses of Thomas C. Hodges, were paid by the deceased, by whom ha was employed in his store as an assistant. That when the executor was spoken to about the account he had raised against the estate of the.testator,’ he stated, he wás sorry he had’brought forward the. account, and that he. should not' have done so but by the' advice of another. That he had said, that his uncle the testator did not agree to give him wages, but- a share of the property was promised, 'but no agreement was made. - The depositions also stated,’that some six months before the death, of .the testator, the defendant applied • for wages, which wére refused, and he was told to take money from the. drawer, and goods from the store’, and if not satisfied he might return. >■ to his iathér. That it. was .understood the' appellee was in the store of the testator as-aplerk. The testator observed at the-time of making -his will, that' he had given the defendant, his nephew, a legacy, ás a consideration for. his seryicés; he had-always intended to give him something; he gave him the lega*. cy for his services because he had not been paid for them. It was also testified that the executor, had a good deal of trouble • in settling the estate. The counsel for the appellants endeavoured to maintain, 1, That the claims of the executor had been improperly allowed by the Court below.- .2. That the evidence shows the commission allowed is unjust, and. unreasonable. ■ • . ■.. 3. The appellee-had no legal claim fdS> services -rendered .to .the deceased. Mr. Key for the appellant.— The evidence, does not establish any claim to the compensation claimed by the appellee. On the’contrary, he himself acknowledged he had no Claim. But' if any <jebt was due to'him, the. amount thereof could not.be ascertained by the course adopted in this, case. It must become the subject of prooi like all other demands an the estate. It is' contended that no appeal is allowed in this case, be- • cause tne provisions of the law of Maryland leave to “ the discretion” of the Court, the determination of the amount of commissions. What is the meaning of the assertion that no appear can be .maintained in such a case ? It is only when the exercise of discretion by the Court is matter of favour or- indulgence, . that the rule applies; but when there are legal rights, the discretion of’the Court applies to those rights, and its exercise is a matter of law, and. like all others, when exercised is examinable Mr. Coxe for the appellee.— This is an application to have an examination of an account which has been passed upon by the Orphans’ Court. It is de- ■ nied that a matter, to be determined by the discretion of the Court; can be the subject of appeal. The party must point out , an error in law, and if the allowance by the Court is not beyond the per centage authorized by the statute, there cannot be such error. These accounts having been passed by the Orphans’ Court, before whom wére all the facts,, the ó dy remedy which remains is upon the bond'given by the executor; and in such an action all the matters are open for examination. [MAJORITY — ^Mr. Justice Duval] ^Mr. Justice Duval delivered the opinion of the Court.— The,appellee in this case obtained letters testamentary on the estáte of Thomas C. Hodges, deceased, and passed accounts in the Orphans’ Court for Washington county,' in which he was allowed ten per cent, commission on the inventory of the deceased’s estate amounting to 82,358 70, and 81200 for. service's rendered to the- deceased in his lifetime. The appellants, creditors of the deceased, finding that the estate would probably be insufficient to pay the.-full amount of their claims, filed their petition in the Orphans’ Court objecting t? the allowance of the claims of the executor,- alleging 'that ;he property of the' deceased consisted" only of a store of goods in Georgetown, apd a few debts due to him; and'that the settlement of the estatk was made without much labour or expense.' Upon the answer of- the executor, and the testimony taken in the cause, the Judge of the Orphans’ Court decided in favour of the executor, and decreed that both claims be allowed. From this decree an appeal was prayed and granted to the Circuit Court' for Washington county, in which the judgment of the Orphans’ Court was affirmed. From this decision the ■ cause is brought up, by-appeal, to this Court for final hearing and decree. ■ Several questions have been raised in arguing this cause. Qn the part of the appellants, it is contended, First, that the allowance of ten per cent, on the inventory, circumstanced as this case appears tó be, is unjust and unreasonable. Secorfclly,-That there is no foundation, for the claim of 81200, made’by the executor for services' rendéred the testator, in his lifetime; The counsel for the appellee contends, First, that'the whole allowance'made by-the Orphans’Court was no more than a moderate'compensation for the attention and prompt settlé-jnent of the accounts of the;'deceased, by the executor, and for his seryices for several years as a clerk in the st.ore of the deceased ; and secondly, that the decision ofthe.Orphans’ Court was. final and conclusive, and; from which íhéré ought to have been no appeal.- . The'power and authority of the Orphans’ Court is derived from the testamentary laws of Maryland.. The last general. Act upon the subject,'is that passed' in .the year, 1798,'ch. 101, The Orphans’ Court has a general powér- to administer justice iti all'matters relative to the affairs of deceased'persons, according to law. The commission to-be allowed to "an. executor or' administrator*' is submitted to the discretion .of, the Coiirt, “ not under five per cent, nor exceéding ten per cent:on the amount of the inventory.”. -If'the-executor .lias , a claim against the deceased, it shall stand on-an equal footing .with otfier claims of the same .nature.. On a plenary proceeding, if either party shall require, the Court .will direct'an issue or issues to be made Up and sent-to a Court of Law to be tried, arid any person conceiving hitoself aggrieved by any judgment, decree, decision or order, may appeal, to the Cour.t of Chancery* or to. a Court of Law;; > And 'ny Maryland, the .dé'cision of the Court to which thé appeal is' made, is final and conclusive. But in the case under consideration, -this Court.' has- jurisdiction by virtue of the Act of Cpngress of: February' 1801, by which the Circuit. Court for the District of Columbia was''created, which provides that “ any final'judgment, order or de-, . cree, in the .said -Circuit Court, wherein the matter, in dispute,1 exclusive of costs, shall exceed the value pf g 100, may be re-examined, and reversed Or affirmed in the Supreme Court of the United States, by writ of, error or appeal.'” By an Act of Congress subsequently passed, the matter in dispute, exclusive of costs, must exceed the value of $1000' in order to entitle the party to an appeal. • With respect to the commission to be allowed to th'e executor or administrator, it- is submitted by law to the discretion of the Cour.t, not less than five, nor .more. than ten per-cent. They may allow the lowest, or highest rate, or’any intermedia ate proportion between thé mininiüm and- maximum,- to which, in their discretion, they may adjudge the party to be- entitled upon a-cousideration.of all circumstances, according to the ser-' vices' rendered, and !th,e trouble and expense in completing the •administration. Upon a just construction of this Act, it was pbvipüsly the intention of the legislature, that the debision of the Orphans’ Court should be final and conclusive, and such is the opinion of this Court. ■ ' ■ ‘ The claim Of -81200, for services rendered..in the lifetime of th.e testator, rests<npon different ground. The law places it “ on' am equal footing.-with ■ other, claims of the same nature.” The legality and .equity of the claim, must be examined in the same mahner as thé claim of any other creditor.. Of .course, it. is a claim, .on the trial of which either party might have required atrial by jury in the manner prescribed by law. ' But this was not asked, and the claim was submitted in gross tor-the' decision of the Orphans* Court, and was decided on in like man-net5 -by .the Circuit Court; alid it is now brought in the .same shape before this Court, ' -To. support a claim Of this nature, it is incumbent on the party making it to prove some contract, promise, or -agreement, expressed, or implied, in relation- to. it. .• The testimony contained in the record-may be summed up in a few words.- It is;, admitted by, the appellee, that there , was no agreement to pay him'wages. It is in proof, that he .lived1 with his uncle ■three qr four years in the capacity of a clerk, and. that for more than half th.e time he was the only clerk' in the store, his uncle Having great-;confidence in him. That it was distinctly understood- between them, that the testator had agreed to pay his board, tq find him in clothing, and to pay his expenses ge-;. uerally•' that it was customary ataong merchants ■ to take young men, of, a certain age, for their "board and clothes; that the unble had said that at' a future day he intended to take h&n into partnership with him; and it was. proved that„the testator, at the time of making his will, observed that be had given his nephew a legacy as a consideration for-his'services; apd- that he had always intended to -give him something. It is not denied that the testator had.fully complied with his.engagement to pay his board, supply him with clothes,1 and'pay' his..expenses. On this testimony the claim rests.- The evidence is too defective to require comment,. It is the.opinion of this Court that it .is too'loose and. indeterminate to sanction the claim, and,, it cannot' be Sllowed. The decree of the Circuit Court,' affirming the decree of the' Orphans’ Court, as to this claim, is "reversed; in all other, re* speets it is affirmed.