
    Baker v. Baker and Others.
    Tuesday, March 31st. 1812.
    1. Executors- — Claim against Estate Depending on Quantum Meruit — Bill in Chancery. — Where an executor has a claim against the estate of his testator. depending on a quantum meruit only, he may exhibit a bill in equity against his co-executors and legatees, to have such claim established and fixed at a certain sum.
    2. Same — Same—Same—Amended Bill. — In such case, he ought to state the claim with reasonable certainty, by setting forth his own estimate of his services; bnt, should he fail to do so, his bill ought not to be dismissed, but leave to amend it should be granted on motion.
    The appellant, John Baker, exhibited his bill in the Superior Court of Chancery for the Staunton district against Henry W. Baker, who, and himself, were executors of Henry Baker, their father, deceased, and against the said Henry W. Baker and others, who, with himself, were devisees and legatees of the said decedent, claiming to be paid a compensation from his estate, for services performed for him in his trade of a butcher from November, 1788, to December, 1795; for which services the said decedent had promised to compensate the plaintiff, (being then of full age,) if he would not leave him, (which he was about to do,) and would continue his exertions for him in that business; but no specific sum was agreed upon between them; that after he left his father, having formed a matrimonial connexion, he forebore to press the payment, or adjustment, of the compensation, confidently relying that his father would do it at some convenient time; which, however, he failed to do, and departed this lile in the year 1807, leaving, by his will, to the plaintiff, property inferior in value (as he contended) to what was left to any other of his children ; in which will nothing was said about the plaintiff’s claim to compensation as aforesaid. The bill charged a knowledge of the agreement and services by the defendants, *and prayed a decree for a reasonable compensation out of the assets unad-ministered, or, in case of a deficiency of such assets, a contribution from the legatees and devisees to make it good, and for general relief.
    Joseph Stover, and Elizabeth, his wife, (late Elizabeth Baker) filed an answer, in which she denied any knowledge of such promise by her father, or that he induced the plaintiff to remain with him; alleging also, that she had often heard him say, that he paid the plaintiff, from time to time, the full value of his services. Her husband stated his belief that her answer was true; and could not admit the justice of the claim.
    The other defendants, together with Stover and wife, filed a demurrer to the bill; and, for causes of demurrer, insisted, that no particular sum was averred to have been agreed upon ; and that the devises and bequests to the plaintiff, in the decedent’s will, fully satisfied the claim, if any he had.
    The cause was heard July 25th, 1810, upon the bill and demurrer; when the chancellor sustained the demurrer, and directed the bill to be dismissed with costs. The next day, during the same term, the plaintiff moved for leave to amend his bill, which was refused. An appeal was taken to this Court.
    Williams, for the appellant,
    contended that the bill made a sufficient case for a Court of equity to afford relief, and therefore the demurrer should have been overruled, and the defendants decreed to answer.
    2. That if the demurrer was a sufficient bar, the Court should have suffered the plaintiff to amend his bill.
    Wickham, contra.
    The chancellor was clearly right in dismissing this bill on the face of it. It is a mere case of quantum meruit for services rendered by a son to his father. It is true that he could not sue at law, because he was executor: but he might have retained assets to pay himself. No want of assets is alleged in *the bill. He ’does not say that the subject within his control was insufficient.
    The bill is defective, also, in not claiming. any particular sum. Certainty, to a reasonable extent, is always required: but in this case there is none; for the plaintiff does not pretend to put any estimate on his services.
    Upon the merits, there never was a more unfounded claim. It is evident the plaintiff’s object was to conciliate, by his services, the good will of his father, and that he expected to be compensated by his will. He took his chance, and did not put it on the footing of a contract. He has now no right to change his ground, and appeal to a court of justice. He has made his election, by acquiescing in the will, and not offering to give up the estate devised to him.
    Williams, in reply.
    Where an executor has a claim against the estate of his testator, depending on a quantum meruit only, his proper remedy is in equity. If he made a certain charge, the other legatees might sue him in equity for a settlement of his account. He may, therefore, apply to equity for the same purpose; making them all parties.
    His omitting to state any certain sum in his bill is unimportant. The whole subject should have been referred to a master.
    Taking this bill as admitted to be true by the demurrer, it is as fair a case as ever was. The presumption of the testator’s intention, to give the legacy as satisfaction for the services, might be rebutted by evidence.
    At any rate, leave to amend the bill should have been granted, to enable the plaintiff to state what compensation other people received for similar services. But, in my opinion, it needed no amendment, as the whole subject, might have been inquired into by a master.
    
      
      Executors. — See monographic note on “Executors and Administrators” appended to Rosser v. De-priest, 5 Gratt. 6.
    
    
      
      Chancery Practice — Amended Bills. — Ordinarily, if a bill in chancery shows that the plaintiffs have lust canse oí action, the bill ought not to be dismissed when a demurrer is sustained; but leave should be given to amend the bill. Rowland v. Rowland, 11 W. Va. 274, citing the principal case. To the same effect, the principal case was cited in Welton v. Hutton, 9 W. Va. 343. See further, on the subject, monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
    
   Friday, April 3d, the president pronounced the Court’s opinion, that the decree was erroneous in sustaining the demurrer, and dismissing the bill. It was, therefore, reversed, *the demurrer overruled, and leave granted the appellant to amend his bill; for which purpose, and further proceedings, the court remanded the cause.  