Carlin's Estate, In re

• Decision Date: 15 March 1957
• Docket Number: No. 127,127
• Citation: 129 A.2d 827,212 Md. 526
• Parties: Ex parte in the Matter of the ESTATE of John J. CARLIN, deceased. Richard M. CARLIN, John J. Carlin, Jr. v. Elizabeth C. FISCHER et al.
• Court: Maryland Court of Appeals

Page 526

212 Md. 526

129 A.2d 827

Ex parte in the Matter of the ESTATE of John J. CARLIN, deceased Richard M. CARLIN, John J. Carlin, Jr. v. Elizabeth C. FISCHER et al.

No. 127.

Court of Appeals of Maryland.

March 15, 1957.

Hilary W. Gans, Baltimore, for appellants.

Walter C. Mylander, Jr., and Charles C. W. Atwater, Baltimore, for appellees.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

John J. Carlin became wealthy over the years operating amusement parks. His two sons, led by Richard M. Carlin, a member of the Baltimore Bar, and his two daughters, led by Elizabeth Carlin Fischer, who with her husband lived with her father, haggled over his wealth and the control of his affairs both before and after his death. Their efforts brought about the litigation we are asked to review in this appeal.

In late 1953 the Circuit Court No. 2 of Baltimore declared Mr. Carlin incompetent and appointed Richard and another lawyer, representing the daughters, as his trustees. Mr. Carlin died in May, 1954. The trustees advised the court that notice of caveat to his will had been filed by the sons and were authorized to continue the operation of the decedent's businesses. In January, 1955, the two sons and the two daughters, each named as an equal residuary taker under the will, entered into an agreement for the division of his real and personal estate and for the purchase by the sons of shares of stock in one amusement park owned by the daughters individually. Thereupon, Mr. Carlin's will and a codicil were admitted to probate and the Circuit Court No. 2 of Baltimore assumed jurisdiction of the estate and of the consummation of the agreement for its division.

The various questions in the two equity proceedings were heard together by agreement. One appeal here is from a decree in the incompetency proceeding that required Richard to refund commissions he had taken for his services as co-trustee for operating the father's business for the period of seven months from the father's death to the assumption of jurisdiction of the administration of the estate by the equity court, as a result of the interpretation placed by the chancellor on provisions of Mr. Carlin's will that no child should receive any remuneration for in any way administering his estate.

A second appeal by Richard is from the chancellor's refusal in the proceedings for the administration of the estate to allow him fees for legal services claimed by him to be due by his father for the years 1937 to 1950, both inclusive. Both sons appealed from the direction of the chancellor in the proceedings for the administration of the estate that they must pay their sisters immediately the agreed amount of the purchase price for the stock. At the argument the parties agreed that this matter had become moot and, therefore, we give it no consideration.

We agree with the chancellor in his decision as to the right to commissions. Mr. Carlin's will gave the residue of his estate in equal shares to his four children, saying his intention was that the division among them should be 'absolutely equal' and, to insure this, he provided that: 'if any of my children who are named executors, or serve in any capacity whatever receive any remuneration for administering my estate in any manner', then each of the other children shall receive the equal of that remuneration; it being his intention that 'each of my children shall receive no more and no less than any other of my children.'

Elizabeth and Richard were two of the three executors named in the will. The codicil removed the third executor and named in his stead an employee of the testator, who was a legatee in the will. The codicil provided: 'It is my desire and my understanding that my said executors hereinabove named shall waive all claim for commissions in the performance of their duties as my executors.' Richard argues that he is entitled to commissions as trustee because the testator had in mind only commissions payable to executors for administering the estate in the Orphans' Court and that the language he used does not embrace trustees acting under the authority of an equity court. He argues further that the provisions of the codicil, the instrument last executed, control, and that a direction that executors shall receive no commissions is invalid under the authority of American Jewish Joint Distribution Committee v. Eisenberg, 194 Md. 193, 70 A.2d 40, and cases therein cited. As we read the will and codicil, the broad language used by the testator clearly embraced any pay received by any child for in any manner dealing with the settling of his affairs after his death. Cf. Renshaw v. Williams, 75 Md. 498, 23 A. 905. The will and the codicil are not inconsistent or contradictory and their provisions can be read together. The testator did not attempt to prohibit the allowance of commissions to a child. He provided merely that if a child receives any, the other children must be given an equal amount. We think that to permit Richard to retain his commissions, without an equal allowance to his brother and sisters, would defeat the clearly expressed intention of the testator.

The chancellor gave three reasons for refusing to allow Richard's claim for accumulated legal fees. He found (a) no evidence properly admissible that any such indebtedness was due and owing; (b) that the claim was barred by limitations; (c) that the matter was res judicata, because in 1954, in the incompetency proceedings, Richard had petitioned for and been allowed counsel fees for the years 1951, 1952 and 1953, without pressing or even referring to the claim for fees for the years prior to 1951. In this Court, the appellees make no point of limitations by reason of our recent decision in Talbert v. Reeves, 211 Md. 275, 127 A.2d 533.

By stipulation of the parties, the claim of Richard for the sum of $13,363.91 for accumulated legal fees for the years 1937 to 1950, inclusive, was to be heard and determined as if it had been raised prior to the hearing by petition for payment and as if an answer thereto had been filed, raising all permissible defenses.

In order to understand the background of the claim, the chancellor admitted testimony of Richard concerning his agreement with his father as to the fees, although much of it was admitted subject to being stricken. The final ruling was that the records of the father were admitted and that testimony of Richard in clarification of any item shown by the records to be connected with the debt was admitted, and that any testimony beyond the books and the explanation of them, as well as that as to any transaction or conversation with the father, was stricken. The chief reliance of Richard was a ledger sheet of his father's with the heading 'Richard M. Carlin', showing a balance of $14,044.22 as of the beginning of 1949, with a credit of $2,500 for that year. The sheet shows entries down to December 31, 1954, and a balance due as of January 1, 1955, of $13,363.91. Richard's testimony was that in 1937, when he was two years out of law school, his father had agreed to credit him with $2,500 a year for legal services, which he was not to receive but which he was to treat as having been received for the purpose of the federal income tax. He said that he paid the income tax on the $2,500 each year even though he had not received it. In 1942 he went into the Army, and, upon his return, entered the City Solicitor's office in Baltimore, and for these reasons there were no credits for the years 1943 to 1947. In 1946 the Internal Revenue Service questioned the legal fee for 1942 and Richard wrote the agent in charge that 'The fee is subject to demand and has been ever since the time it was agreed upon. * * * You may rest assured that I regard it as part of my capital assets, and my father has indicated that it is available upon demand.' This statement is at variance with Richard's testimony, that the agreement was that he would be credited with an annual retainer of $2,500 and that his father would pay him 'when he felt he could pay me or when I needed the money.' We note that except for two $1,000 items, one of which was for Richard's honeymoon, all of the other payments in the later years were small. For example, in 1951, 1952 and 1953, the father paid $23 for the son's automobile license. Each year Richard's automobile insurance of $60 or $70 was paid. Payments usually would not exceed $100 in any year after 1948. For each of the six years from 1937 to 1942 and for 1948, 1949 and 1950 Richard, according to his testimony, was credited with $2,500, or a total of $22,500. During that period he was paid some $9,000--or $1,000 a year. It is hard to accept as a fact that a man with the wealth the record shows John J. Carlin to have had, could not, over those years, have been able to pay the balance of $1,500 a year, if he owed it, or that Richard, whose income tax returns in evidence showed that often his total income, including the $2,500, was only $5,000 a year, could have failed to have needed the money during that period. The will of the father went to great pains to see that each child would receive no more and no less than each of the others. If he had felt he owed Richard some $13,000, or Elizabeth the substantial debt claimed by her, it seems likely that he would have referred to these debts in his will either by taking them into account for the purpose of equalization, or by reciting that they were not to be so considered, if that were his intention. Both from Richard's testimony and from what in fact took place, it would appear that Mr....