Berger v. Clendinen

• Court: Maryland Supreme Court
• Writing for the Court: BRISCOE, J.
• Citation: Berger v. Clendinen, 88 Md. 151, 40 A. 705 (Md. 1898)
• Decision Date: 29 June 1898
• Parties: BERGER et al. v. CLENDINEN.

40 A. 705

88 Md. 151

BERGER et al. v. CLENDINEN.

Court of Appeals of Maryland

June 29, 1898

Appeal from circuit court of Baltimore city.

From an order allowing the auditor's report and accounts distributing part of the estate of Mary E. Fechtig, Mary E Berger and others appeal. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, BRISCOE, BOYD, FOWLER PAGE, and PEARCE, JJ.

D Meredith Reese, for appellants. Thos. G. Hayes and Thos. R Clendinen, for appellee.

BRISCOE J.

This controversy arises upon exceptions to an auditor's report and accounts, distributing that part of the estate of Mary E Fechtig, of Baltimore city, in the hands of Samuel R. Dashiel, trustee, who is one of the appellants, and was due from the sale of certain houses, which had been purchased by Thomas R. Clendinen, the appellee. The residue of the estate had been distributed by a previous audit, dated the 21st of May, 1896, and ratified by the court. A statement of the facts will be necessary to a clear understanding of the case. Mary E. Fechtig died some time in the year 1893, leaving a last will and testament, in which she disinherited her relatives and devised her entire estate to strangers in blood. The will was successfully contested by her heirs at law. It appears, by an agreement and assignment in writing, between the heirs at law and Mr. Thomas G. Hayes, of Baltimore city, who was employed to caveat the will, the latter was to receive for his professional services, if the caveat to the will was sustained, a contingent fee of one-fourth of the entire estate. Mr. Clendinen, the appellee, was employed by Mr. Hayes to assist in this litigation. After the will was set aside, the circuit court of Baltimore city assumed charge of the distribution and settlement of both the real and personal estate. The appellant Mr. Dashiel was appointed trustee for the sale of the real estate, and was also administrator of the personalty. In the auditor's report and account, a Mr. Clendinen, the appellee, was allowed the sum of $2,371.86, as assignee of Mr. Hayes, for the contract and assignment. It further appears that certain exceptions were filed to the ratification of the auditor's account, and specially to the allowance of the $2,371.86, to Mr. Clendinen for the reasons, as stated, "the assignment under which the said Thomas R. Clendinen claims the sum of money has not been filed in the case, nor is there anything in the case which shows that he is entitled to this sum of money." These exceptions were dismissed by the court on the 21st of May, 1896, after a hearing and argument, and the report finally ratified and confirmed, and the trustee was directed to apply the proceeds according to the audit. There was no appeal from this order, and it stands unrevoked by any subsequent order of court. Subsequently, on the 12th of June, 1896, Mr. Clendinen filed a petition, asking, among other things, for an accounting distributing the proceeds of the property purchased by him, and also for an accounting between himself and Mr. Dashiel, the trustee. This petition was answered by the trustee, and, after testimony taken, the matter was referred to the auditor, and accounts D, E, F, and G were stated. These accounts were rejected by the court, upon exceptions filed, after testimony taken and argument had, and on the 26th of March, 1897, new accounts were directed to be stated in conformity with certain instructions of the court. In the order of court, the auditor was directed, among other things, "that in the restatement of the account between the said Samuel R. Dashiel, trustee...