63 Md. 589 | Md. | 1885
delivered the opinion of the Court.
The testator devised his entire estate to his wife by a second marriage, and appointed the appellant executor of his will. Before the will was admitted to probate, a caveat was filed by the daughter of the testator, and only child by the first marriage. The caveat was subsequently abandoned on the payment of thirty-five hundred dollars by the widow and sole devisee under the will, to the daughter, the caveator.
This is an appeal from an order of the Orphans’ Court dismissing the petition of the executor, in which he asked authority from said Court to pay eight hundred dollars, in addition to six hundred dollars, already paid the counsel who represented the defendants in this litigation.
Now it is well settled that when a caveat is filed after a will has been admitted to probate and letters testamentary have been granted, the executor is entitled to an allowance for counsel fees, because it is his duty under such circumstances to defend the will thereby assailed. Glass, et al. vs. Ramsey and Jenkins, 9 Gill, 456 ; Compton vs. Barnes, et al., 4 Gill, 55.
Whether an executor is entitled to an allowance for counsel fees in resisting a caveat to a will before the will has been admitted to probate, is a question not necessary to be decided in this case.
The caveat was filed, it is true, before the will was admitted to probate, but it does not appear, from the face of this petition, that the counsel were employed by the executor to resist the caveat, nor that their services were rendered upon the faith of an agreement on his part that they should be paid by him as executor. On the contrary, the several allegations, when considered together, plainly show, that the agreement for compensation, and the
In the first part of the petition, it is alleged that upon the filing of the caveat, Mr. Carter and Mr. Higgins were employed to represent the defendants, “ Mr. darter having been employed at the instance of the widow, and Mr. Higgins at the suggestion” of the executor. How, if the petition had stopped here, it might be inferred that Mr. Higgins was employed and was to be paid by the executor. But the petitioner then alleges, that when said counsel were employed, an agreement was made as to their compensation, whereby it was agreed that they should receive a retainer of $600, and the further sum of $1500, in the contingency that the will should be sustained ; that thereupon Margaretta E. Perkins (the widow and sole devisee) entered into a stipulation in writing, requesting the executor to pay the retaining fee, and another stipulation in writing requesting him to pay the contingent fee of $1500; that he paid the $600 retaining fee, and agreed to pay the contingent fee out of the estate.
The petition further shows, that the terms of compromise were submitted to the widow, and agreed to by her, and that she further agreed that $800 should be paid to the counsel in view of such compromise, instead of $1500.
It thus appears that the services of counsel were in fact rendered to the widow; that the agreement as to their compensation was made with her — “the stipulation” for the payment of the contingent fee of $1500 was made with her,- and the subsequent agreement for the payment of $800 instead of $1500 upon the compromise of the case was also made with her, the executor being designated merely as the person by whom the payment was to be made. In other words, if the will was sustained, the executor was to be the paymaster for the widow, to whom
Eor these reasons the order of the Orphans’ Court will be affirmed.
Order affirmed.
