Elizabeth Lee vs. Stephen Lee, and Robert Welch of Ben, 6 G. & J. 316

Dojrstsy, J. delivered the opinion of the court. An agreement having been filed by the parties, that the record be so amended as to remove all objection as to the time and manner of taking the appeal; the only question before us is, did the Orphans court err in ordering their register to credit Stephen Lee, with his account of $ 350 18, exhibited in the record of the proceedings in this case. It has been argued on both sides, as if this account presented a claim for services rendered in finishing and securing the growing crop on the lands of the testator at the time of his death.

And it is resisted on the part of the appellant, on the ground that it was the duty of the executors to finish the crop begun by the deceased, and that the Orphans court are not authorised to allow them, or either of them any compensation for their personal services, otherwise than as they are compensated in their allowance of commission. In this resistance, on the ground on which it has been made, we cannot agree with the appellant. An executor in finishing the crop of the deceased, is not bound to discharge the duties of an overseer.

To impose on him such a duty, would be virtually, to exclude from that office most persons Avhose services it would be desirable to engage in that capacity. Suppose the deceased was the owner of many farms, and in different sections of the State, on all of Avhich valuable crops were growing, which it was the interest of the estate that the executor should complete; is he bound,, should it be practicable, to officiate as an overseer on evnry farm ? Certainly not. No duties so unreasonable are imposed on him by the law.

He may employ and pay out of the assets in his hands as many overseers as are necessary for the completion and preservation of the crops. If with more advantage to the estate, he acts in the capacity of an overseer, himself, it is competent for the Orphans court to allow him a reasonable compensation for his services. But the present claim appears before us under circumstances which enlist for it no favorable consideration from the court.

The executor according to an account filed with that now under examination, claims from his father’s estate $961 43, for wages as overseer from the 28th of August, 1826, to 25th of January, 1833, at $150 per annum. But as overseer from his father’s death, on the 26th of January, 1833, to the 31st of December, 1833, he charges $300. Thus claiming for his services for eleven months and five days, as much as he had ever done before for two years’ discharge of the same duties. And these services it is contended, we ought to presume were rendered in finishing a crop begun before the 25th of January, 1833.

Of what could the crop in the nature of things have consisted ? Why of wheat and rye sown in the fall of 1832, and which an overseer should have had ready for market before the 1st of October, 1833. The appellee, Lee, then calls on us to allow him for about eight months’ service, or rather for three months, (for until the rye and wheat were fit for harvesting, no overseer was necessary,) three hundred dollars, when as appears by the proof, he could find no human being, who could say, that at any antecedent period of his life, his services for a year were worth more than $150.

Ought we under such circumstances to be asked to give our sanction to such a claim ? But an insuperable obstacle to our allow* anee of any claim for such services is, that it no where appears upon the record, that the testator left any growing crop. And if it were otherwise, no matter what may have been the growing crop, an insurmountable objection to any allowance presents itself, in the utter absence of any scintilla of proof to sustain it. The claim having been contested before payment, its passage by the Orphans court is no evidence of its correctness.

It must be supported by testimony substantially sufficient for its establishment before a jury. On this occasion no evidence of any kind was offered. And an inspection of the account itself, and the answer of the appellee, conclusively demonstrate, that there exists no such claim against the estate of the deceased. It was for services as overseer after the death of the testator. So much of the decree of the Orphans court of the 7th of October, 1834, is reversed, as directs a credit of $350 10, to be allowed to the executors in their account. Upon the appeal of Stephen L.

Lee, the only question presented is, as to the propriety of the order of the Orphans court in rejecting the claim of Stephen L. Lee, for $961 43, for services renderd to his father in his life-time. The account has passed the Orphans court upon the affidavit of the claimant alone; but this adds nothing to its intrinsic merits or authenticity, when reviewed as it was by the Orphans court, upon the proceedings before it.

It is a claim made by a son on the estate of a deceased father, “for working on, and superintending his farms” for six years, four months, and twenty-seven days, at $150 per annum ; the full value of the son’s service according to the testimony of all the witnesses. No credit of any nature or description is given on this account, and it is a fact admitted in the cause, that although the appellant charged for his services from the 28th of August, 1826, down to his father’s death, yet that he did not arrive at age until the 17th of November, 1827. It is in proof by a competent witness, that Stephen L.

Lee, told him some years before his father’s death, “that he got whatever money he wanted from Mr. Owens, his father’s agent in Baltimore.” These circumstances, when viewed in connexion, cast ashade of suspicion over the claim, whieh should impel the court to regard it with the eye of scrutiny and suspicion.

In the absence then of all proof that the father, ever by word or deed, promised or held forth an expectation to his son, that he would compensate him for his service, or that the son ever intimated to the father, or any body else, that he intended to claim such compensation, are we at liberty to conclude, that there existed between them a contract for that purpose, either express or implied ? When it is expressly proved by the son’s own declarations, that he had made no contract with his father, but looked to his father’s will, as the source whence his compensation was to flow.

It is a case, which to the letter comes within the familiar principles stated by Ld. Kenyon in 1 Esp. Rep. 108, Le Sage vs. Consmaker and others, Executors, that if the services were rendered by the plaintiff “without any view to a reward, but with a view to a legacy, that he could not set up any demand against the testator’s estate.”- The authorities referred to by the appellant’s counsel do not impugn the principle upon which the order of the Orphans court rests for its support. They were cases, where there either was an express promise of reward, or facts from which the promise might be implied.

Here no such facts are to be found; and the case therefore comes completely within the well established prneiple of the law, that no action will lie to recover compensation for services preformed, where with a view to a voluntary legacy the services were rendered by the plaintiff without any expectation of being paid the value thereof, or any promise of remuneration, express or implied. The order of the Orphans court, so far as concerns the subject matter of this appeal, is affirmed with costs. On the appeal of Elizabeth Lee, and Stephen L.

Lee, against Robert Welsh of Ben, the court decreed that so much of the order of the Orphans court as allowed to the said Welsh a commission of eight per cent, on the inventory, he reversed with costs, and the record was remanded to the Orphans court, with directions to have the account stated accordingly.