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Nicholls v. Hodges. iP.

answer of the executor, and the testimony taken in the cause, the judge of the orphans' court decided in favor 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. On the part of the appellants, it is contended, first, that the * allowance of ten per cent on the inventory, circumstanced [ *565 ] as this case appears to be, is unjust and unreasonable. Secondly, That there is no foundation for the claim of $1,200, made by the executor for services rendered 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 settlement of the accounts of the deceased, by the executor, and for his services for several years as a clerk in the store of the deceased; and secondly, that the decision of the orphans' court was final and conclusive, and from which there 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, c. 101. The orphans' court has a general power to administer justice in 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, “not under five per cent. nor exceeding ten per cent. on the amount of the inventory.” If the executor has a claim against the deceased, it shall stand on an equal footing with other 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, and any person conceiving himself aggrieved by any judgment, decree, decision, or order, may appeal to the court of chancery, or to a court of law. And in Maryland, the decision of the court in which' the appeal is made is final and conclusive. But in the case under consideration, this court has jurisdiction by virtue of the act of congress of February, 1801,' by which the circuit court for the District of Columbia was created, which provides, s. 8, that “any final judgment, order, or decree, in the said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of $100, may be reëxamined, and reversed or affirmed in the supreme court of the United States, by writ of error or appeal."

"2 Stats. at Large, 106.

Nicholls v. Hodges. IP. By an act of congress' subsequently passed, the matter in dispute exclusive of costs must exceed the value of $1,000 in order to entitle the party to an appeal.

With respect to the commission to be allowed to the executor or administrator, it is submitted by law to the discretion of the court, not less than five nor more than ten per cent. They may allow the lowest or highest rate, or any intermediate proportion between

the minimum and maximum, to which, in their discretion, [ * 566 ) they may adjudge the party to be entitled * upon a con

sideration of all circumstances, according to the services rendered, and the trouble and expense in completing the administra. ·tion. Upon a just construction of this act, it was obviously the intention of the legislature, that the decision of the orphans' court should be final and conclusive, and such is the opinion of this court.

The claim of $1,200, for services rendered in the lifetime of the testator, rests upon different ground. The law places it “ on au equal footing with other claims of the same nature.” The legality and equity of the claim must be examined in the same manner as the claim of any other creditor Of course, it is a claim on the trial of which either party might have required a trial by jury in the manner prescribed by law. But this was not asked, and the claim was submitted in gross to the decision of the orphans' court, and was decided on in like manner by the circuit court; and 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 lived with his uncle three or four years in the capacity of a clerk, and that, for more than half the 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, to find him in clothing, and to pay his expenses generally. That it was customary among merchants to take young men of a certain age for their board and clothes; that the uncle had said that at a future day he intended to take him into partnership with him; and it was proved that the testator, at the time of making his will, observed that he had given his nephew a legacy as a consideration for his services, and 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, and pay his

13 Stats. at Large, 261.

Bank of Columbia v. Sweeny. 1 P. 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 allowed.

The decree of the circuit court, affirming the decree of the orphans' court as to this is reversed, in all other respects it is affirmed.

8 H. 402.

THE BANK OF COLUMBIA v. GEORGE SWEENY.

1 P. 567. This court will not grant a mandamus to revise the proceedings of a circuit court as to the

pleadings. This can only be done by a writ of error after a final judgment.

MESSRS. Jones and Key moved the court for a mandamus.
The case is stated in the opinion of the court.
* Jones and Key, for the plaintiffs.

[569] Swann and the Attorney-General, for the defendant. MARSHALL, C. J., delivered the opinion of the court.

This case arose under the provision of the act of the legislature of Maryland, incorporating the Bank of Columbia, which authorizes summary process for the collection of debts due to the bank. That act allows an execution against the person of the debtor to issue, in the first instance, upon the application of the president of the bank; but it also authorizes the court, if upon the return of the execution the defendant “ dispute the debt,” to order an issue to be made up, &c., to try the action.

In the present case, the circuit court did not refuse to direct such an issue to be made up; which, had they refused to do, a mandamus would have been the proper process to compel that to be done which the act requires. But the circuit court did direct an issue, and allow a plea of the statute of limitations.

The application now is that the circuit court be ordered to withdraw that issue, and to direct a different issue to be made up according to what the counsel for the bank supposes to be the proper construction of the act.

We think this is not a proper case for a mandamus. It does not differ in principle from any other case in which the party should plead a defective plea, and the plaintiff should demur to it; in which case there is no doubt that the revising power of this court could be exercised only by a writ of error. If this motion could now prevail, it would be a plain evasion of

Waring v. Jackson. iP. the provision of the act of congress, that final judgments only should be brought before this court for reëxamination. This case might still be brought before this court by a writ of error, notwithstanding any. opinion expressed upon the mandamus, and the same question again be discussed upon the final judgment. The effect, therefore, of this mode of interposition would be to retard decisions upon questions which were not final in the court below, so that the same cause might come before this court many times before there would be a final judgment.

The court is therefore of opinion that this is not a case for a man. damus, and the motion is denied.

STEPHEN Waring, Plaintiff in Error, v. James Jackson, Ex-devise of MEDCEF EDEN and another, Defendants in Error. THE SAME V. The Same.

P. 570. Under a devise to two sons in fee, with a clause that if either die without issue, the survivor

should take his part, and if both die without issue, then over. Held, that, under the law,

of New York, nothing passed by this last limitation over. A possession of land taken and held under an execution, pot against the lawful owner, does not prevent him from devising the land under the law of New York.

THOMPSON, J., delivered the opinion of the court.

These cases come up from the circuit court of the United States for the southern district of New York, upon writs of error. The question in the court below turned upon the construction of the will of Medcef Eden, the elder, bearing date the 29th August, 1798, by which the testator devised to his son, Joseph, certain portions of his estate, among which were the premises in question in this cause. “ To him, his heirs, executors, and administrators forever.” In like manner, he devised to his son, Medcef, his heirs and assigns, certain other portions of his property, and adds the following clause: “ Item. It is my will, and I do order and appoint that if either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths without lawful issue, then I give all the property aforesaid to my brother, John Eden, of Lofters, in Cleveland, in Yorkshire, and my sister, Hannah

Johnson, of Whitby, in Yorkshire, and their heirs." [*571 ) * The case of Jackson v. Chew, 12 W. 153, decided at the

last term, brought under the consideration of this court the construction of this same clause in the will, and the records in the present cases have been submitted to the court, without argument, to

11 Stats. at Large, 85.

Waring v. Jackson. 1 P.

see whether the decision in that case will govern the cases now before us. The facts disclosed in the case of Jackson v. Chew, did not require of the court to decide any other question than whether Joseph Eden took under the will an estate tail, which, by operation of the statute of New York, abolishing entails, would be converted into a fee-simple absolute. The court decided that he did not take an estate tail, but an estate in fee, defeasible in the event of his dying without issue in the lifetime of his brother, (which event happened,) and thereupon his interest in the land became extinct, and the limitation over to his brother, Medcef, was good as an executory devise.

In the cases now before the court, it appears that Medcef Eden has died without issue, having by his last will and testament devised bis estate to his widow, and certain other devisees therein named, which has given rise to two other questions, namely, whether John Eden and the heirs of Hannah Johnson (she being dead) took any estate in the premises, under this clause in the will, on the death of Medcef Eden, without issue?

And whether the possession taken and held under the sheriff's sale, by virtue of the judgments and executions against Joseph Eden was such an adverse holding as to prevent the operation of the will of Medcef Eden, the younger.

In deciding the case of Jackson v. Chew, we did not enter into an examination of the construction of this clause in the will, considered as an open question; but adopted the construction, which appears to be well settled in the two highest courts of law in the State of New York, not only upon this very clause, but in numerous other analogous cases; and has thereby become a fixed rule of landed property in that State.

And this was in conformity with what has been the uniform course of this court with respect to the titles to real property to apply the same rule that we find applied by the state tribunals in like cases.

The additional questions presented in the cases now before us, have likewise undergone a very full examination in that State, and been decided both by the supreme court and the court for the correction of errors. In the case of Wilkes v. Lion, 2 Cowen, 333, the decision turned upon these very points, and the court of errors affirming the decision of the supreme court, held with only one dissenting voice, that nothing passed under the ulterior devise over to John Eden and Hannah Johnson, but that Medcef Eden had become seised of an estate in fee-simple * absolute. [ * 572 ] No opinion appears to have been directly expressed by the court with respect to the effects of the adverse possession upon the operation of the devise in the will of Medcef Eden, the younger.

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