| Md. | Jul 2, 1873
delivered the opinion of the Court.
This is an appeal from an order of the Orphans’ Court of Baltimore City, refusing to send certain issues of fact to a Court of Law for trial. In order to understand the nature of the case and the questions involved, it seems to be necessary to preface what we have to say with a brief statement of facts.
Mrs. Mary E Browne, .deceased, left a will devising her estate to the Rev. Thomas Lilly, and appointing him her sole executor ; he died before the testatrix, leaving a will by which he devised all his property and estate to
After the death of Mrs. Browne a contest arose in the Orphans’ Court with respect to the right of administration on her estate; which was decided in this Court in Pres. &c. of G. Town College, et al. vs. Browne, 34 Md., 450. The appellant O. C. Browne was her brother, and one of her heirs at law, and filed a caveat to her will, alleging for the reasons therein stated, that it was invalid and ought not to be admitted to probate. To maintain the caveat the appellant employed the appellees as his attorneys, and entered into an agreement with them with respect to the compensation they should receive for their services, which has given rise to the present controversy. The agreement is as follows:
“It is hereby agreed this 23rd day of February, 1871, between Charles C. Browne, of the first part, and John P. Preston and R. H. Goldsborough of the second part, that the said Preston and Goldsborough will further prosecute the suit or suits of Charles C. Browne vs. the President and Directors of Georgetown College, both at law and in equity, (the purpose of said suit being the recovering for the next of kin, the estate of the late Mary E. Browne, deceased,) to its or their final determination, without charge to the said Charles C. Browne, individually ; unless the said estate is recovered, and if said estate or any part of said estate should be recovered, then the said Browne is to pay his proportion as heir of said estate, of such fee as the Orphans’ Court of Baltimore City shall allow. And it is hereby further agreed by the said parties of the first and second part, that the said Preston and Goldsborough shall receive for their professional services in said suit or suits, such remuneration
“ (Signed) R. H. Goldsborough,
“John F. Preston,
“Attorneys.”
Appended to the above is an agreement of Goldsborough with respect to his individual indebtedness to the appellant, not material to this case.
It appears that after the filing of the caveat to. the will, issues thereon were sent by the Orphans’ Court to a Court of Law for trial; and the appellees, acting as attorneys under the foregoing agreement, engaged in the trial on behalf of the caveator, but unsuccessfully; a verdict being rendered sustaining the will. The appellees reserved exceptions to the ruling of the Court at the trial; and took an appeal thereon to this Court. While the appeal was pending, a compromise was effected between the parties whereby the appeal was dismissed, the caveat abandoned; and for the sum of $15,000.00 the whole estate of Mrs. Browne devised by her will, was conveyed to the appellant. He had before that time been appointed administrator with the will annexed, in accordance with the decision of this Court in 34 Md., 450, (before referred to.)
The appellees not having received compensation for their professional services, rendered under the agreement; filed their petition in the Orphans’ Court, against the appellant as administrator, c. t. a. of Mary E. Browne, praying the Court “ to pass an order allowing them for
The Court proceeded to hear the case and after considerable testimony had been taken, the appellant filed a petition praying that issues might be made up and sent to a Court of law for trial; this application was resisted by the appellees, and the Court passed an order refusing the same; from this order the present appeal was taken.
The ease has been very^ fully and ably argued, and several interesting questions discussed ; but we are all of opinion that the case is not one, which the Orphans’ Court has the power to hear and determine, we shall confine our decision to the single question of jurisdiction.
It is contended on the part of the appellees that the jurisdiction is conferred on the Orphans’ Court by Art. 7, sec. 7, of the Code, which is in these words:
“The several Orphans’ Courts of this State shall have power, with the consent of both parties, to he entered on their proceedings, to arbitrate between a claimant and au executor or administrator, or between an executor and a person against whom he has a claim, or the dispute may by the parties be referred to any person or persons approved by the Orphans’ Court,”
It is very clear to us that this section refers only to claims against the estate of a decedent, which are asserted against the executor or administrator, in his fiduciary character, and does not apply to such as are contracted by the executor or administrator in his individual character, and which are only binding on him personally.
The section is codified from the Act of 1798, ch. 101, s. c. 8 and 12, constitutes a part of our testamentary system, and is found in the original Act in connection with rules respecting accounts of executors and administrators,
The claim of the appellees arising under their agreement with the appellant, set out in their petition is not one which existed against ttie testatrix in her life-time, nor is it in any sense a claim against her estate, or against the appellant as administrator, c. t. a.
At the time it was entered into, the appellant was not administrator, it was made by him in his individual capacity, as heir-at-law, and next of kin of the deceased; with respect to a matter iu which he was personally concerned ; for the promotion of his own interests and not for the benefit of the estate; it is therefore not such a claim as is contemplated by this section of the Code, which the Orphans’ Court has power to pass upon, or which may be submitted to their arbitrament; but being a claim against the appellant personally, must be asserted in another form. Even if the agreement had been made by the appellant after he became administrator, he could not have bound the estate; and the Orphans’ Court would have no power to allow out of the assets, any claim due the appellees under the agreement; for the reason before stated, that it creates only a personal liability, of the appellant, and would not be such an allowance as is authorized by Art 93, sec. 5, of the Code. Under that section the executor or administrator is entitled to an “ alloioance for costs, and extraordinary expenses, (not personal,) which the Court may think proper to allozo, land out in the recovery or security of any part of the estate.” ********
It is obvious that the claim of the appellees for contingent fees, under the agreement before us, is not within the section last quoted.
The Orphans’ Court is a tribunal of limited jurisdiction having no general or implied powers, but restricted by the law, to the exercise of powers expressly delegated.
This proceeding cannot, of course, be maintained upon the theory that this is an agreement of reference to the arbitration of the Orphans' Court, not in the exercise of its ordinary jurisdiction as a Court, under the Code; but as arbitrators selected by the parties. The agreement will not bear that construction, but if it could be so construed ; then it was in the power of either party to revoke the submission, and the powers of the arbitrators are at an end.
It follows from what we have said that the application of the appellant to have issues framed was properly refused; the order appealed from will therefore be affirmed; but being of opinion that the Court is without jurisdiction in the case, it will be remanded to the end that the petition of the appellees may be dismissed; but without prejudice to the assertion of their claim by proceeding in a proper forum.
Order affirmed, and cause remanded.