Kendall v. McAllister

HOUSER, J.

This isan appeal by two residuary legatees under the will of Jessie T. McAllister, deceased, from each of two orders,—by the first of which the executors of said will were granted leave to compromise a claim which the estate held against a certain individual; and by the second of which orders, the amended and supplemental account current of said executors, as far as it related to the allowance to them of a credit on their account with the estate for the full amount of said claim, was settled and approved.

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The pertinent facts are that at the time of her death in this state, the testatrix was the owner of all the capital stock of a corporation located in the state of Ohio, which stock she had acquired from the estate of her deceased husband; that for many years preceding the death of the testatrix an Ohio lawyer named Brink had transacted all legal business for the corporation, the husband of the testatrix, and latterly for the testatrix herself; that following the decease of the testatrix the executors of her will and estate appointed Brink to “look after” the interests of the estate in the state of Ohio and to effect a sale of the stock in said corporation; that following the sale by Brink of said stock and upon the confirmation thereof by the probate court, Brink remitted to the executors of the estate the sale price thereof, less the sum of two items represented by commission allowed to Brink for effecting the sale and an amount which Brink claimed was due to him for unpaid services performed by him for the testatrix in her lifetime, for or on account of which he had filed no claim against her estate. In addition thereto, Brink claimed that the amount allowed to him by the probate court as commission for making the sale of the stock was inadequate and, consequently, that he was entitled to a further payment on that account. The right to retain such funds in his possession, which amounted to $10,440.84, was claimed and asserted by Brink under the provisions of a certain statute of the state of Ohio. It was understood that Brink was financially responsible and that the probabilities were that he would be able to respond to any judgment which finally might be rendered against him. It was also developed that at the time Brink was appointed by the executors of the estate they had knowledge of the facts regarding his former employment by the corporation, the husband of the testatrix, and latterly by the testatrix herself; and that one of the executors thought it “entirely probable that she did not pay Mr. Brink, but I didn’t know it until after he had this money in hand”. On the hearing of the matter it further appeared that the estate of the testatrix was comparatively greatly financially involved; that the interest and tax charges against the estate amounted to more than $5,000 per year; “that litigation against said Brink by the executors would have to be instituted in the city of Cincinnati, state of Ohio, and an attorney of Gin