Hubbell v. Olmstead

Barrett, J. This suit is brought to recover of the defendant on an agreement, that if the plaintiff would take upon himself the office of administrator of the estate óf Ha Olmstead, the [623] father of the defendant, the defendant would pay him extra for his services. The report finds such an agreement, and that in consideration thereof, the plaintiff accepted said offce — the defendant procuring his appointment by the probate court. The probate court allowed, in settling the administration account, the fees fixed by statute, With an additional sum for expenses, — that court expressly declining to recognize, or take jurisdiction, or act upon the subject of said agreement. The auditor finds that, by virtue of said agreement the plaintiff is entitled to recover, above the sum allowed by the probate court, $46.87 and interest, making $49.98. The main'objection urged against the plaintiff’s recovery of this sum is, that the fees of an administrator are fixed by statute, and there being a penalty provided for taking larger fees than is thus prescribed, the plaintiff has no right of action, both on the ground of the statutory provision, and because such a claim is contrary to public policy. We understand that statutory prohibition and penalty to be applicable only to eases of such officers as have the right to tax fees against some person chargeable, by statutory provision, with the payment thereof, such as sheriffs, or other persons serving process, where the statute provides the measure of' fees to be taken, and prescribes by whom they are to be paid; and other persons standing upon a similar ground under the law. We cannot understand how this could be applicable to administrators, who are not entitled to make a claim on any body whose personal duty it is to pay such fees — but whose compensation is to be fixed by the probate court, and is to be adjusted and satisfied in the accounting and final settlement of the estate. This provision of the statute was designed to prevent extortion by officers charged with certain duties, in virtue of their office. In other words, it was designed to render them compellable to perform the duties which the law visits upon the office, for the compensation provided, without exacting more as a condition upon which they will perform such duty. We think all the eases to which that statute applies are distinguishable from this. The plaintiff was holding no office [624] which entitled the defendant to call upon, and require him to perform any duties. The defendant was interested in his father’s estate, in the administration of which a man of more than ordinary qualifications was necessary, in order adequately to do the business needful to be done. It involved matters of complication and difficulty, to understand and manage which, the services of a lawyer would need to be invoked. Regarding the plaintiff as being peculiarly qualified, by his personal and professional character, for the needed services, as an inducement for him to undertake the duties of administrator, the defendant promised to pay him extra for his services. This was not in the character of fees, as meant in the statute ; but it was compensation beyond statutory fees, for services beyond the ordinary services of an administrator. It was securing, in the same man, what, but for the agreement made by the defendant, it would have been necessary to employ two or more men to do, and that too entirely at the expense of the estate; it was securing the services of a man who could and did do the sei'vices both of an ordinary administrator and of professional adviser and manager, without additional charge to the estate. That there is no positive or common law against such a’ transaction seems to us beyond question. On this score, then, it cannot be said to be against public policy. The probability of such transactions being resorted to for the purpose of securing improper administration of estates, seems quite too remote to make it the ground of pronouncing a public policy against them. Unless then, there be a fatal vice in such a contract, either by reason of statutory prohibition, or of public policy, it must follow that the contract in this case possesses all the elements of a valid contract. In saying this, it is not meant that there might not be such a contract, made under such circumstances, and for such purposes, that the court would refuse to uphold it. But the contract in this case and the manner in which the plaintiff has discharged his duties under it, has furnished no ground for hesitating in giving it effect according to its terms. With the other points made in the argument we had no difficulty. The judgment is affirmed.