Appellants Brief — McIntire v. McIntire

Supreme Court of the United States.

Oocronze Tzam, 1903.

)

EDWIN A. McINTIRE, Apuonsraaror C.

T. A. or Dav Molnrme ef ai., Appxzt-

LANTS aND Piamrirrs m Esror,

CHARLES MoINTIRE.

ad

Appeal from, and in Error to, the Court of Appeals of

the District of Columbia.

Brief for the Administrator C. T. A. et. al. on Cross

Appeal and Writ of Error.

STATEMENT OF THE CASE.

An outline of the very long and very troublous history

of this case is exhibited in the record by copies of the

docket entries of the former orphans’ court (1-5) and the

circuit court of the District of Columbia (43).

The futile contest against the last will of David McIntire,

deceased, begun by his brother, Charles McIntire, in 1885,

and continued by Charles McIntire, Jr., administrator and

500

2

‘also son and sole next of kin of said Charles Mclutire, —

fills considerable space in the reports of the general term

(19 D. CO. 482) and of this Court (162 U.S. 383). The

fierceness and pertinacity of the warfare waged at every

point along the line against the will itself and against the

administrator cum testamento annexo have seldom been

equaled, even in the history of family feads. One result

is that, although the testator died nearly twenty years ago

(on April 1, 1884), and his will was promptly probated

and letters c. ¢. a. issued, and the administrator has been

trying to settle ever since, the estate, sadly depleted by

expenses and losses, is still in the courts.

Death has been busy among the parties, and even

among the counsel, several of whom on each side, eminent

in their profession, have passed away, but it has not

brought peace in the case.

In all these proceedings, either Charles McIntire, or his

son and administrator, Charles McIntire, Jr., has been the

aggressor and in the position of plaintiff. The adminis-

trator c. ¢. a., besides defending the validity of the will of

David McIntire, as he was bound to do virtute offcii, has

always been ready and anxious to settle the estate, and

with his mother and sisters has done all that was possible

to that end, even going to the bounds of prudence in mak-

ing concessions for the sake of peace.

Under these circumstances, it is respectfully urged by

us that all reasonable intendments should be taken in

favor of the administrator c. ¢.a., as regards those credits

allowed to him by the learned jurist (Mr. Justice Hagner)

who held the special term for orphans’ court business, and

which were erroneously, as we submit, disallowed by se:

Court of Appeals of the District of Columbia.

This court will perceive that on the one side in this

controversy is the administrator c. ¢..a., who is also:a

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legatee, and with whom are aligned his three sisters and

co-legatees, and the legal representative of a fourth sister,

now deceased, who had assigued her share to their

mother, who is also now deceased. Under the construc-

tion given to the will by the courts below, these represent

a large amount in special legacies and five-sixths of the

residue of the estate. They are entirely harmonious

among themselves, and have been strictly on the defensive |

since the first attack, which was begun during the year

after the will was probated and letters granted.

On the other side is now Charles McIntire, Jr., the ad-

ministrator and universal heir of his father, Charles

McIntire, and he is the sole disturbing element.

In the seeming confusion which attended the begin-

ning of the trouble, a group of malcontents were admitted

to the litigation, consisting of a Mrs. Galliher and her

brothers and sister, children of Henry McIntire, a de-

ceased brother of the administrator c. ¢. a. (9). After

putting into the affair the regrettable tinge of bitterness

that can exist, it seems, only in fullest intensity between

very near relatives, somebody made the discovery that

this group had no possible interest in the estate, either

under the will or against it.

The last will of David MclIotire (6) was probated and

letters of administration c. ¢. a. were issued on April 12,

1884 (9). ;

Afterward, as appears by an allusion in the record (10),

a suit in equity of some kind was begun by Charles Mc-

Intire, Jr., as a legatee, and the Galliher faction, against

Edwin A. McIntire and others; and in that equity suit,

on February 19, 1885, in a way that seems open to some

criticism as matter of practice, an order was made for the

administrator c. ¢..a. to pay into the orphans’ court, that

is to say, to the Register of Wills (not to the clerk of the

4

equity court), the assets of the estate. On the same 19th

of February, 1885, a consent order was passed in the

orphans’ court (9, 10, 11) purporting to sanction this and

various other arrangements, some of which might be

questionable on the point of validity, since consent cannot

give jurisdiction.

This was the beginning of the efforts by the adminis:

trator c. ¢. a. to get peace restored in the family—efforts

which failed. In pursuance of them, however, in April,

1885, in a so-called arbitration before two of the counsel

for the various parties (11,12, 13) he agreed to be charged

with an alleged sum of $10,000—saying “ [I] will not con-

test any matters with my relatives ” (12).

He did this only upon his four sisters, one of them since

deceased, receipting to him, as of date February 25, 1885,

for $2,500 each, so that this particular monetary sacrifice

toward securing peace was made really by these ladies,

one of whom, it is said, was even then in her last illness,

and therefore particularly averse from family strife.

Notwithstanding all concessions for peace, Charles

McIntire, the surviving brother of testator, began a con-

test in June, 1885, seeking to have the probate revoked

and the will declared void. He made charges of unsound-

ness of mind of the testator and undue influence, which he

produced no testimony whatever to support (162 U.S. 383).

On such testimony as he had, issues were tried twice be-

fore juries (42, 43) and a verdict directed by the court

against him and sustaining the will. The case was carried

to the general term, and then after some struggle (3) to

this court, where it was decided April 13, 1896. Before

that, in 1890, the original contestant had died and his

sop, as administrator, took his place in the litigation (48)

besides having an interest, in his own right, as legatee

in case he failed to “ break” the will as his father's ad-

5

ministrator. He was thus “on both sides of the

fence.” oe

During the same time proceedings went on actively in

the special term for orphans’ court business. In August,

1886, a consent order was made (16) that the Register of

Wills, whose charges for costs seem to have been dis-

puted (2), deliver all the assets of the estate in his hands:

“To the solicitors for the said parties in interest in

said estate, * * * to be held by said solicitors, sub-

ject to the further order of the court herein, until the final

settlement of the litigation touching the said estate.”

This proceeding had no warrant in any statute, and

apparently must be regarded as “de facto sed non de jure.”

It was also an abrogation by consent of the former con-

sent-orders by which the assets were “ paid into court "—

for the assets went into the hands of Mr. James M.

Johnston (afterwards succeeded by Mr. Calderon Car-

lisle), one of the solicitors for the caveator, and Mr. S. 8.

Henkle (afterwards succeeded by Mr. Enoch Totten),

solicitor for the caveatees (26). The solicitors thus en-

trusted with the funds were sometimes called by the name

of “custodians” (17, 29), but this designation was not

derived from any law or statute in regard to the orphans’

court. The administrator c. ¢. a. remained in office all

this time, performed such duties as he could, some of

which were important, since the legal authority and title

were always in him, and he rendered accounts from time

to time (4).

On petitions of the caveatees, the orphans’ court, from

time to time, passed orders allowing the “ custodians” of

the assets to pay out certain sums for fees to the two

eminent counsel, both now deceased, who successively

defended the will, until $12,000 was thus expended (18,

20, 22, 25). It was recited in the orders that these sums

should be charged against the shares of the caveatees in

the estate without prejudice to their right to apply to the

court to have said sums charged against the estate. When

the “custodians” made their final report (27, 28) they

took credit for these payments as against the cash which

had been in their hands, thus practically charging the

payment against the whole estate; and the orphans’ court

ratified and confirmed this by approving the report and

account of the solicitors or custodians (29, 30), and by

overruling the third exception to the account of the ad-

ministrator c. t. a. (37). This report or account of the

custodians was participated in by the late Mr. Calderon

Carlisle, one of the solicitors for Charles McIntire, Jr.,

equally with Mr. Enoch Totten, solicitor for the caveatees.

In June, 1896, the mandate of the Supreme Court of

the United States having been filed sustaining the will,

and as it must have been apparent that no further prog-

ress could be made without restoring the administrator

ce. t. a. to his legal and proper functions, the custodians

filed their final report, already mentioned, and on petition

of the administrator c. ¢..¢. he was directed to file an ad-

ditional bond in the sum of $100,000 (31), which he did

in July, 1896, with corporate security (32), and received

again the assets of the estate after twelve years’ interval.

He has had sole charge of them for the seven years since

then.

In December, 1896, the court approved his final account

_ (4), but it was soon afterward contested by the irrecon-

cilable Charles McIntire, Jr., who now came into the arena

in his own right as a legatee and opened the contest now

before this court. In August, 1897, after some inter-

locutory proceedings, the administrator c. ¢. a. presented

an amended final account (34). Exceptions were filed to

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it in October, 1897 (36), by Charles McIntire, Jr. (who

always moved deliberately in this affair). They were

brought to a hearing and overruled in the following year

(39); the account was approved and final distribution was

ordered (41).

From this action, Charles McIntire, Jr., appealed to

the Court of Appeals of the District of Columbia (40).

That court only on some minor details of the accounting

differed from Mr, Justice Hagner, and remanded the

cause for a restatement of the account in those partic-

ulars (68).

McIntire v. McIntire, 14 App. D. C. 337.

A restatement of the account was made in the probate

court, successor to the orphans’ court (47), and was ex-

cepted to by both sides (52), but passed over the excep-

tions (53), and cross appeals were taken (54,55). In the

Court of Appeals the action of the probate court was

affirmed without argument (61); both sides appealed to

this honorable court, and to provide against any uncer-

tainty in the form of seeking a review here, also sued out

writs of error (62, 63).

The questions argued in this brief arise on the enti

tions of the administrator c. ¢. a. to the account as finally

restated in the probate court.

SPECIFICATION OF Errors.

The rulings of the Court of Appeals erroneously sur-

charged the administrator c. ¢. a. on the final accounting,

against his objections and protest, with over six thousand

dollars, made up chiefly as follows :

Commission allowed to him by the orphans’

coart in its original order on his account, six

per cent., would be now, on $86,410.42. ..... $5,184 62

One item of fee paid to Mr. S.8. Henkle, as

counsel for defending last will of David McIn-

ibis ks ri TES NS CRRA CRRA OR Eve ot 500 00

Interest on $10,000, as elsewhere explained 511 £0

Interest on a sum of $1,419.73 as elsewhere

explained (to be computed)...............-

Interest on partial distributions, as else-

where explained (to be computed)

This makes an appealable amount, under the analogy

of the decisions in—

Shields v. Thomas, 17 How. 5.

Market Co. v. Hoffman, 101 U.S. 113.

Texas, etc., Ry. v. Gentry, 163 U. S. 361.

Brier oF ARGUMENT.

It is to be observed all through this case that it is within

the bounds of accuracy to say that thus far not one con-

tention on a matter of substance has been successful on

the part of the trouble-makers, Charles McIntire, the

father and son. This will appear from the fact that they

first attacked the validity of the will of David McIntire,

and were defeated from court to court, and finally in this

the highest tribunal in the land. Charles McIntire, Jr.,

then attacked the construction put upon the will, and has

been defeated from court to court, with a prospect, as we

venture to believe, of defeat here. .

Only as incidental to all this “false clamor” has

Charles McIntire, Jr., been able to gain some rulings on

9

interlocutory matters, to the disadvantage of the adminis-

trator c. ¢. a., and through him to all the Edwin T Mc-

Intire tivanch of the family.

Under the fury of the onset of the two Charles Mc-

Intires, and the turmoil they have stirred up during nearly

twenty years of strenuous but practically unsuccessful

litigation, it would have been wonderfal if the adminis-

trator c. ¢. a.:or his various counsel had never made

any formal slips, which might have been avoided on a

calmer survey of the sitration. But we submit that the

assailants, defeated on the merits of the main issues raised

by them, ought not to reap a benefit from mistakes that

never would have occurred but for the confusion due to

their contest. A simile may be borrowed from Emerson’s

“ Conduct of Life” :

“ Like a boat about to be overset, or a carriage run away

with—not only the foolish pilot or ‘driver, but everybody

on board is forced to assume strange and ridiculous atti-

tudes, to balance the vehicle and prevent the upsetting.”

It is easy to see now that this estate ought to have been

left in the hands of the administrator c. ¢. a., at first as at

last, instead of going the rounds of the Register of Wills

and a number of “ custodians ;” it onght to have been set-

tled during the nineteenth century instead of lagging over

into the twentieth, etc., etc.; but these things were due

primarily to the contests of Charles McIntire, Senior and

Junior, the Achilles and Pyrrhus of this long siege, each

of them—

“Impiger, iracundus, inexorabilis, acer.”

Of course it was their privilege to apply to the courts

and litigate to the extent of their ability, but the question

is now whether the administrator c. ¢. ¢., who was always

10

the party attacked, and who acted strictly on the defen.

sive, as much so as any defendant in a suit at law, and

whose task has been made most onerous and difficult by

these attacks, shall be mulcted for the benefit of the

assailants.

I.

Fmsr Exception or ApmintstraTor ©. T. A. (52).

This relates to the disallowance of all commissions to

him by the Court of Appeals, after the orphans’ court had

allowed him six per cent.

The allowance of commissions is a matter peculiarly

within the province of the orphans’ court, which has a

close-at-hand view of the administration of the estate ;

and so far as discretion is vested in that court, its exercise

is not subject to appeal.

Wilson v. Wilson, 3 G. & J. 201.

Parker v. Gwynn, 4 Md. 423.

Sinnott v. Kenaday, 12 App. D.C. 115; 14 App.

D. C. 1.

The recital in the order of February 19, 1885 (10), “ That

said Edwin A. McIntire shall act as administrator of said

David McIntire, but without any allowance for commis-

sion or other charge for his services as such adminis-

trator,” is not only of very doubtful validity in law, but

was evidently conditional upon what follows, and upon

the whole arrangement of compromise, by which the

assets of the estate, amounting then to some $50,000,

were to be put in charge of the Register of Wills, the

administrator c. 7. a. was not required to increase his then

bond of $8,000, a speedy settlement was expected, and

the duties would be merely nominal.

ll

Five months after that date the contest of the will was

begun, and the estate has been tied up for a length of

time wholly unanticipated. The whole situation has

utterly changed. *The Register of Wills received a hand-

some percentage for the short time during which he held

the property (30). The solicitors who acted as custodians

of the funds received a still larger one (30). Finally, the

administrator c. ¢. a., besides his work and anxiety in

defending the will, was required to give an additional

bond of $100,000 (31); whereupon the assets were delivered

to him again, and he was charged with the heavy respon-

sibility of distributing them in a hotly contested litigation.

It would certainly be unreasonable to deprive the laborer

of his hire under such circumstances. He has served

more than seven years for the Rachel of his commissions.

It is especially worthy of note that Justice Hagner, who

signed the order of the orphans’ court of February 19,

1885 (9), allowed the commissions in the account ap-

proved March 5, 1898, thus showing how he understood

his former order, in the light of the circumstances, and

putting a construction upon it.

In Eversfield v. Everefield (4 H. & J. 12, 13), even

where an executrix had agreed to charge no commission,

and the orphans’ court had acted upon that agreement,

yet, when she afterward applied for her commission, it

was held that the court should grant it.

The right to commissions is a valuable right, and can-

not be divested by an agreement without consideration or

with a consideration that fails.

So where one executor claimed to have done all the

work pertaining to his position, he was nevertheless di-

rected to share his commission with his co-executors.

Richardson v. Stanbury, 4 H. & J. 275.

9013

12

.So the allowance made for commissions to a collector

was held to have no effect upon the commissions of an

executor or administrator of the estate.

Wilson v: Wilson, 3 G. & J. 20.

The learned Court of Appeals said, in reference to this

subject (74): “AlZ that remained to be done when the

assets were redeliveréd to the administrator was to settle

the final account and procure an order of distribution.

The litigation over the will had ended in its establishment.

The labor and responsibility of administration were prac-

tically ended.” (!)

With due respect to that court, this seems to be a com-

plete misapprehension. The administrator has been

charged with the responsibility of these assets, under

bond of $100,000, since July, 1896. An exawination of

his account will show the collections he has had to make,

the investments he has had to look after, the partial dis-

tributions he has conducted.

In the simple (?) task of settling the final account he

has had to go, with the assistance of counsel, from the

orphans’ court to the Court of Appeals, from the Court of

Appeals back to the probate court, and from the probate

court back to the Court of Appeals, and then to this Hon-

orable Court.

He can scarcely be expected to agree that the “labor

and responsibility of administration were practically

ended ” when he received the assets for the second time.

The Court of Appeals also remarks that in any view only

five per cent. can be allowed to the administrator because

five per cent. was allowed to the “ custodians,” and the

court is limited to ten per cent. in all. The difference of

one per cent. which might be disallowed under this point

need not be dwelt upon at length. We submit that the

13

allowance to the “custodians” is either an extra-legal

proceeding which has no bearing on the legal rate of com-

missions, or the “ custodians” were practically collectors

of the estate within the principle of Wilson v. Wilson, 3

G. & J. 20. The counsel for Charles McIntire, Jr., was

one of the “custodians,” and received half the commissions

of five per cent. (about $4,000) allowed to them.

II.

Seconp Exception or ApminisTraTor C. T. A.

This refers to one of the minutiz by which on the re-

accounting the delay caused by the contestants has been

made to tell against the administrator c. ¢. a. and bis

branch of the family.

A partial distribution was made on or about January

1, 1898, by consent, the contestant, Charles McIntire,

Jr., insisting that he get over $6,000, while the other ben-

eficiaries received only $2,800 each. The $6,022.22 paid

to Charles McIntire, Jr., was charged of course, against bi:

share of the residue of the estate. We submit that

the $2,800 paid to the others should be charged against

their share of the residue in order to be consistent.

It was charged by the court below against their special

legacies to their disadvantage inasmuch as these bore

interest.

The same reasons apply to the $2,500 each assumed by

four of the special and residuary legatees (49, 50). These

sums should be charged against their share of the resi-

due.

Where money is paid to a party who holds both an

interest bearing and a non-interest bearing obligation, he

has a right to apply it on the latter.

Jones v. U. 8. 7 How. 681.

14

: TIl. i

_ Temp Excerrioy.or Apwmusrraton ©. T. A.

The learned Court of Appeals, in its careful scratiny

discovered a point (73) which had not been expressly

raised by the contestant below, and while it very properly

sustained the credit for the bulk of the connsel fees for

defending the last will of David McIntire, it surcharged

the administrator c. ¢. a. (48) with one such fee paid, of

$500, because the petition and order therefor (14, 15)

were in slightly different form from those for the other

counsel fees. We submit that through attention to form

this is inconsistent in substance. The petition (14) shows

that the fee was paid for defending the last will and

testament of David McIntire from unjust attack, just

as the other fees were; and it seems too much of a refine-

ment of technicality to exclude it because the petition

and order, being the first of the kind in the case, were not

as cautiously worded as those subsequent.

IV.

Fourts Exceprion or ApminisTraior C. T. A.

The facts in regard to the item of $10,00° have already

been referred to in the first part of this brief. The four

sisters of the administrator c. ¢. a., one of whom, Adaline,

was then on her death-bed, thinking that a disagreeable

conflict with their own kinfolk, and a family disruption

could be averted, insisted on assuming the burden of the

disputed amount of $10,000. Their method of doing so

was by giving their receipts for $2,500 each, whereupon

the administrator c. ¢. a. agreed to be surcharged with

$10,000, thus balancing his account in that reapeet. It

was expressly made a part of the settlement, in the paper

15

filed by him and acted upon by the arbitrators (11, 12),

that these receipts should be accepted as disposing of the

sum at the same time that he was charged with it. It

was not intenddi that im addition to diminishing the

shares of his sisters by $2,500 each, the administrator. t. a.

was to be charged with interest on a sam of $20,000,

whose actual existence he has always denied (10), though

willing to assume the amount constractively for this par-

ticular purpose and in the hope of peace. Nothing was

said in the arbitrators’ report or the order of coart

thereon (13) about any interest, and there is nothing in

the circumstances to cause interest to be charged. A

court does not charge a fiduciary with interest, anless he

bas unreasonably detained money or has used it or real-

ized interest on it himself.

Wilson v. Wilson, 3 G. & J. 20.

Handy »v. State, 7 H. &. J. 42.

This constractive distribution of au amount construc-

tively received was made within the year after testator’s

death (12). Neither Uharles McIntire nor Charles McIn-

tire, Jr., complained of it, or claimed any part in that

particular distribution—for the father was, doubtless, pre-

paring the contest of the will which he filed very soon

afterward, and which made it uncertain whether he or his

son would be entitled to the distributive share going to

their branch of the family. Curiously enough Charles

McIntire and Charles McIntire, Jr., were then, in effect,

antagonistic even toeach other. Their unsuccessful contest

has kept the estate from being all distributed promptly,

and ought not to be rewarded with interest charged like

a penalty upon the administrator c. ¢. ¢., who was ren-

dered powerless to distribute the estate by the action of

‘the court or contestants.

16,

_ Without doubt, the administrator c. ¢. g. expected at

that time—in April, 1885—an immediate distribution of

the whole estate, as no contest of the will had then be-

gun. If such a distribution had been made under the

will, Charles McIntire, Jr., would have received the bene-

fit of this surcharge of $10,000. The delay has not been

due to the administrator c. ¢.¢., nor could he use or invest

money which he did not have. '

Vv.

Fiera Exception or Apminisrrator C. T. A.

This has reference to a balance of $1,419.78 in the

hands of the administrator c. ¢. a, from a dividend on

Pennsylvania R.R. stock in 1891. At the time it was

received, the order to pay the assets to the Register of

Wills was certainly no longer in force, for the assets had

been transferred to the solicitors of the parties (16) in

1886. The administrator c. ¢. a. reported this small bal-

ance publicly to the court (35), but no action was taken

by the court or any of the parties to make him pay it to

his solicitor and the opposing solicitor as “ custodians,”

and it accordingly remained in his hands, in the hope

that the litigation would soon terminate. It was kept in-

tact and not mingled with other funds, and there is of

course no proof that he used it or made interest on it.

Ou che contrary, under a suggestion in the opinion of

the Court of Appeals (76) he filed affidavits (45, 46)

showing that he retained the amount by advice of his

counsel, Mr. S. S. Henkle, who was one of the “ custo-

dians,” and made no use of it except to pay out of it

some costs of the litigation that has been forced upon him.

We submit that the decree of the Court of Appeals of

17

the District of Columbia should be reversed, in so far as

to sustain the exceptions of the administrator c. ¢, a,; but

that the exceptions of Charles McIntire (Jr.) should be

overruled, on his appeal and writ of error (No. 84 at this

term), to be heard herewith, but in regard to which we

file a separate brief.

WILLIAM HENRY DENNIS,

HENRY E. DAVIS,

CHARLES COWLES TUCKER,

Attorneys for Administrator C. T. A. et als.