10 Md. 471 | Md. | 1857
delivered the opinions of this court in these cases: — 1st. Upon the appeal by the executor:
By the order of the orphans court of Baltimore city, passed on the 6th day of October 1855, in a cause wherein Arabella Dorsey, (the appellee in this case,) was petitioner, and Richard B. Dorsey, executor of William H. Dorsey, (the appellant,) was respondent, it was ordered and adjudged, that the said executor pay over to the said Arabella the sum of $>3503.49, which he then had in hand; and, also, that he thereafter, “from time to time, pay to said Arabella, as her absolute property, the balances which he may hereafter have in hand belonging to the estate of said William H. Dorsey, after deducting proper charges, expenses, and any debts which may be due by said estate, if any there should be.”
That suit was an amicable action, instituted in conformity with the agreement between the counsel of the parties, for the purpose of determining the true construction of the will of William H. Dorsey, and of ascertaining the rights of Arabella Dorsey, one of the devisees, In the answer of the appellant to the petition of said Arabella, filed in the said cause, it is stated, “that all the debts of said William H. Dorsey have been fully paid, and likewise the expenses of administration so far as they have accrued,” that certain legacies had been paid, &c., and “that there remains a balance of $3503.49, and that the said balance constitutes, so far as he knows, the entire residuum of the estate of said William H. Dorsey,” with the exception of certain unsettled balances alleged to be payable to said estate from the two firms mentioned in the will.
The petition of the appellant in this case, prays the court to allow him to pay out of said balance in his hands certain reasonable fees alleged to be due by him to his counsel, for services rendered in arguing said cause in the orphans court, and in the Court of Appeals,* and also certain fees for professional services to be rendered by said counsel in prosecuting suits, which the appellant considers necessary, for the purpose of recovering certain debts alleged to be due from said firms to the testator.
We consider that the prayers of the petition were properly refused by the orphans court.
The decision of this court, already referred to, affirming the order of the 6th of October 1855, was a final adjudication upon the question involved, which definitively established the right of Arabella Dorsey, (the appellee in that case,) to the said sum of $3503.49, the balance then in the hands of the executor, and the orphans court could not rightfully apply any part thereof to the payment of the alleged fees, even if they were established by proper proof to be due, and were adjudged to be payable out of the estate of William H. Dorsey.
In view of all the facts of this case, as presented [by(jjthe record, this court is of opinion, that no allowance whatever
We are of opinion, however, that the appellant ought to be allowed out of any assets in his hands, or which may hereafter come into Iiis hands,, (other than the sum above mentioned,) for any fees which may be proved to be just and reasonable, paid by him to his counsel, for services rendered in the preparation and argument of the cause aforementioned, in the orphans court. The judgment of that court was necessary to protect him in the administration of the estate; and those costs were properly incurred by him. 4 Gill, 55. But, beyond such allowance, it would be unreasonable and unjust to charge the estate. The expenses incident to the appeal are not properly chargeable upon the estate.
The judgment of the orphans court was a sufficient protection to the executor; it was not his duty to carry the case farther. If other persons were interested in seeking a reversal of the judgment, an appeal was open to them, or if the appeal was prosecuted for their benefit, the expenses incident thereto ought to be borne by them; it would be inequitable to charge the costs thereby incurred upon the estate of one, against whose wishes and interests the appeal was prosecuted.
Order affirmed, with costs.
2nd. Upon the appeal by Brent:
The decision by this court, of the case of Richard B. Dorsey, Exc’r of W. H. Dorsey, vs. Arabella Dorsey, at the present term, governs this case; and the opinion of the court therein filed is referred to.
The petition in this case seeks to charge the same fund in the hands of the executor, as is sought to be charged in the
We consider, however, that the appellee, (the executor,) should be allowed out of any other funds coming to his hands as executor, to the extent stated' in the opinion to which we have referred, for reasonable and proper counsel fees, costs and expenses, incurred by him in the procurement of professional services in the case referred to in the petition, while the same was,pending in the orphans court. We affirm, without prejudice and without costs, the order of the orphans court in this case; because to remand for further proceedings, would subject the parties to a useless expense, which may be avoided by the executor’s filing his application for such an allowance.
This'opinion is not to be understood as prejudicing any claim of the appellant against Dorsey individually, for any professional services rendered him in the Court of Appeals or elsewhere.
Order affirmed, without prejudice and without costs.