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BROWN VS. STEWART. 371 such party the commissions, is condemned as against the policy of the law. It does not appear to me, however, that the agree- ment between these parties, as proved by the witnesses, falls within the principle, or is of that class of agreements which the court said should not be encouraged. It is not a contract made by a party entitled to the adminis- tration by which he agreed to surrender his right to another in consideration of his receiving from the latter the commissions which might be allowed for settling the estate, but it is an agreement between two parties, both equally entitled, that a joint administration should be taken out, and as the principal labor and responsibility was to be borne by one of them, the other would be content with such portion of the commissions as his associate should think he deserved. There is, therefore, in the agreement between these parties nothing which should ex- pose it to the censure which the Court of Appeals considered would attach to a contract, by which a party entitled to admin- ister on an estate undertakes to sell that right for the commis- sions. This is no sale of the right to administer, but a mere agree- ment between parties, entitled by law to administer, by which one of them, upon a consideration, deemed by him at the time to be adequate, stipulated that he would be satisfied with such com- pensation as his associate might think proper to allow him. I can sec nothing in such an agreement which should induce the court to disregard it as at variance with the policy of the law, and. likely to result in pernicious consequences. Neither is this contract between these parties in opposition. to the case of Richardson vs. Stansbury, 4 Har. & Johns., 275, in which the Court of Appeals decided, that one executor was bound to give his co-executor his share of the commissions, though the latter may have left all the labor to be performed by his col- league, as in that case, no agreement was shown to have been entered into between the parties. The case simply decides, that as the executors are equally entitled to the commission, neither can deprive the other of his share upon the ground that the party claiming the whole has performed the entire labor of |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 4, Page 371 View pdf image (33K) |
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