Bate v. Bate

• Decision Date: 26 January 1876
• Parties: Bate v. Bate, & c.
• Court: Kentucky Court of Appeals

74 Ky. 639

Bate v. Bate, & c.

Court of Appeals of Kentucky.

January 26, 1876

APPEAL FROM LOUISVILLE CHANCERY COURT.

BULLITT BULLITT & HARRIS, W. R. THOMPSON For Appellant,

CITED

Revised Statutes, chap. 37.

Chitty on Contracts, pp. 61, 62, 49, 53.

2 McCord's Ch. R. 102, McCord v. Blewitt.

2 Denio, 403, Stewart v. Trustees, & c.

3 Mar 433, Outon v. Rodes.

7 J. J Mar. 640, McGill v. Burnett.

6 Dana 366, Wood v. McCann.

3 Bush, 652, Clark v. Constantine.

3 Zab. 353.

1 Met. 334, Cabell v. Cabell.

8 B. Mon. 284, Miller v. Porter.

13 Md. 90, Folck v. Smith.

15 Wis. 684, King v. Whiton.

W. B. FLEMING, R. W. WOOLLEY, For Appellees,

CITED

Chitty on Contracts, ed. 1851, pp. 29, 292, 54, 51.

Perry on Trusts, 817. 2 Blackstone, 297.

Call's Rep. 87 (105). McCord's Eq. R. 394.

2 Williams on Executors, 1275.

1 Johns. 37 and 534. 1 B. Mon. 179.

2 Mar. 339. 2 Mon. 151.

1 M. & B. Statutes, p. 668, act of 1797.

5 Dana, 43, Beeler v. Hill.

7 Dana, 17, Clay v. Hart.

5 Johns. Ch. 539, Mason v. Roosevelt.

9 Serg. & R. 209, 223. 4 Johns. 84.

8 Bush, 40, Booker v. Stevenson.

OPINION

PRYOR JUDGE:

This record is from the Louisville Chancery Court, on an appeal taken by John T. Bate from a judgment rendered against him in that court. The action was instituted in the court below to surcharge a settlement made in the Jefferson County Court by the appellant as the administrator with the will annexed of his brother G. B. Bate. Robert T. Bate, one of the devisees, was the original plaintiff, but many of the other devisees, by an answer and cross-petition, united in the prayer of the petition.

The devisor, G. B. Bate, was a bachelor, leaving at his death several brothers and sisters surviving him, and the owner of a valuable personal estate consisting principally of three notes for large amounts executed to him for a tract of land sold a short time prior to his death. The personal estate accounted for by the administrator was of the value of $105,250, upon which he was allowed a commission, in his settlement with the county judge, of $6,300.

There was a contest between the appellant John T. Bate and the appellee Robert T. Bate (both of them brothers of the devisor), in the Jefferson County Court, as to who should execute the will. Robert, being older than his brother John, claimed the right to qualify as administrator; and as an inducement for the court to appoint him, and from motives of benevolence to his sisters, agreed to make no charge against them for his services, asserting that they were poor and in need of their full interest in the estate. The appellant suggested to the court that he would qualify and make no charge against any of the devisees for his services. The judge at that time announced from the bench that he would permit both to qualify, but had no order entered to that effect.

The proof is conclusive that the appellant, after this suggestion had been made by the county judge, declined to qualify with his brother, and without giving him notice of this fact sought frequent interviews with some of the devisees, and particularly with his sister, Mrs. Gray, and promised that if they would recommend him he would make no charge for his services and claim only his actual expenses. He enlisted most of the devisees in his behalf upon his voluntary statement and promise that he would make no charge, and obtained from some of them--or his son did for him--their signatures to a petition asking the county judge to appoint him. The son of the appellant also employed an attorney on behalf of his father and the heirs who favored his appointment to present his claims for the position to the county judge. The appellant, upon this voluntary offer on his part, at the instance of many of the devisees or those representing them, to whom the promise had been made, was appointed and qualified as administrator with the will annexed.

The evidence conduces strongly to show that his brother Robert was expecting to qualify with him, as intimated by the court at a former sitting, and was not aware of the intention to appoint his brother until the day he qualified. They were both men of business habits, and fully competent to administer the estate.

There is testimony in the record tending to show that some of the devisees objected to the appointment of Robert T. Bate on account of their hostility to his attorney and confidential adviser, but the decided preponderance of the proof is that all opposition was withdrawn by the devisees to the appointment of appellant, upon his voluntary statements, and promises made repeatedly before his qualification that he would make no charge but his actual expenses. These statements he continued to make, not only to his brothers and sisters, but to many others long after his qualification.

He gave also as a reason why he desired to qualify that he was indebted to the estate, and if another qualified he would have to contribute with the rest in the payment of the commissions allowed by law.

The land notes, three in number, collected by appellant amounted to near $78,000, and his own note and that of his sons, together with what was owing by some of the devisees, added to the land notes, constituted near $90,000 of the amount of personalty in his hands, and upon which he was allowed a commission of six per cent. The land notes were promptly paid in bank at maturity, and, so far as appears from this record, there was but little trouble in settling the estate.

Upon these facts the chancellor adjudged that the appellant was entitled to no compensation for his services, and this is the only question of importance presented by the appeal.

It is argued by counsel for appellant that if the facts in this case constituted a contract between these parties in regard to appellant's compensation it was not obligatory--first, for want of consideration; and secondly, that it was void, being in violation of a well-recognized rule of public policy.

It must be conceded that a mere promise to aid or procure an office for another is without consideration, nor can an action be maintained upon such an agreement based upon a consideration. Such contracts, being regarded as interfering with the due course of public justice, are held invalid and as being contrary to public policy.

There is a manifest distinction between the sale and purchase of a public position, or an agreement to aid in procuring an office, and cases where the amount of compensation to be paid one occupying a fiducial position like that of an administrator is agreed upon by parties who are alone interested and fully competent to contract with reference to such matters. While such agreements are subject to the scrutiny of the chancellor or the court having the power to adjust and settle the accounts of the fiduciary, still when fairly made without fraud or...