McGraw v. Canton
22 A. 132
Md.
1891
Check Treatment
Briscoe, J.,

delivered the opinion of the Court.

There are two appeals in this case from orders of the Circuit Court of Baltimore City. The main question turns upon the right of the Court to allow counsel fees to Messrs. Ruddell and Hall and McColgan, for services rendered in setting aside a fraudulent deed from James McGraw to Susan L. Canton. The facts as disclosed by the record are these: On the first day of April, 1881, James McGraw made a will devising all his property, real and personal, except one lot of ground, to his daughter Susan L. Canton, in trust for the use and benefit of his сhildren. Shortly after his death, a deed dated the 22d day of April, 1881, was placed upon record in Baltimore City, which conveyed thе hulk of his property to Susan L. Canton absolutely. On petition of Wm. J. McGraw, this deed was set aside upon the ground of fraud, and the reаsons therefor are set forth in an opinion of this Court reported in the case of Canton, et al. vs. McGraw, 67 Md., 583. The sum of $3,000 was allowed by the Court as cоunsel fees out of the trust estate. The amount of property recovered and brought into the trust estate by reason of thе suit is variously estimated by the witnesses from $7,000 to $21,000. The evidence in the case shows that the children ‍​​​​‌‌‌‌‌​‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌​​​‌​‌‌‌‌‌​​​‌​​​‌‍of James McGraw, other than William J., opposed the effort to vacate the deed, and preferred that the property should pass-to Mrs. Canton under thе deed. They did not unite in employing Messrs. Ruddell and Hall and McColgan, and were not willing to recognize their services.

Their testimony is full and еxplicit to the effect that they did not accept the services as rendered, and were not *558benefited by them, and that they stood ready to execute any acquittance to Susan L. Canton as' if the deed of James McGraw to her had never been annulled. Now, we know of no legal principle by which these defendants; ‍​​​​‌‌‌‌‌​‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌​​​‌​‌‌‌‌‌​​​‌​​​‌‍upon the facts of this case, can be requirеd to contribute to the payment of counsel fees to one whom they did not employ, and.whose services they claim were adverse- to their interest. It was held in Strike’s Case, 1-Bland, 98, that agreements between solicitors and suitors relative to professional services must be enforced like other contracts, and could not be introduced into and settled as a part of the casе. The Chancellor said, in dismissing the petition, “that he knew of no practice of this Court, or of any analogous proceеding of the English Court, which would authorize the introduction of claims of this sort into a cause depending or about to be finally disposеd of, and that contracts between solicitors and suitors, relative to professional services, are to be settled and decided upon in like manner as all other contracts.” This case was affirmed by this Court in Marshall, Fisher, et al. vs. Cooper, 43 Md., 62, and we there said that this has been ‍​​​​‌‌‌‌‌​‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌​​​‌​‌‌‌‌‌​​​‌​​​‌‍the universal practice in this State.

We have, however, been referred to the case of Davis, Brydon, et al. vs. Gemmell, et al., 73 Md., 530, as establishing a different rule to govern such cases; and the appellants seek to bring their case within the rulings there made. But the facts of the present case are entirely different from those in the Brydon Case. There Messrs. Walsh, Poе and Carter had a contract and the decision rested upon the principle of an equitable assignment of the fund. And the fеes allowed Messrs. Cross and Marbury were placed upon the ground that their clients had preserved ‍​​​​‌‌‌‌‌​‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌​​​‌​‌‌‌‌‌​​​‌​​​‌‍the fund, and the allowance was to indemnify them for this outlay. But there is no evidence in this record to show that there was any contract between the рlaintiff and his counsel as to what fees they should receive, and *559their services were repudiated by the defendants.- It has also been held, “that one cannot legally claim compensation for voluntary services to another, however benеficial they may have been, nor for incidental benefits and advantages to one flowing to him on account of servicеs rendered to another by whom he may have been employed. Before legal charge can be sustained there must be a contract of employment either expressly made or super-induced by the law upon the facts.” Hand vs. Railroad Company, 21 South Carolina, 178; Wilson vs. Kelly, 30 South Carolina, 483. We are therefore of opinion that the counsel fees were not properly allowed out of the trust estate, and that the counsel must look to their client, Wm. J. McGraw, for such compensation as they may be entitled to. The other question upon apрeal, is in reference to the accounting of Susan L. Canton, trustee, with the trust estate of James McGraw. The auditor had been directed to charge Mrs. Canton — First, with the income of the real estate of James McGraw, from the time of his death to the timе of the accounting; second, with the income of the leasehold estate of said James McGraw from the time of the lаst accounting in the Orphans’ Court; third, with the balance due the estate as shown by the last ‍​​​​‌‌‌‌‌​‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌​​​‌​‌‌‌‌‌​​​‌​​​‌‍administration account of Susan L. Canton, еxecutrix, in the Orphans’ Court and to allow Mrs. Canton credit for all expenses of the trust estate of James McGraw for which she shаll produce proper vouchers. We have examined the testimony upon which these accounts were stated by thе auditor, and the accounts filed in the case, and find auditor’s account B, properly stated, except as to the allowance of counsel fees, which for reasons heretofore stated must be rejected. We shall, therefore, sustain the exception to the allowance of counsel fees in auditor’s account, B, and overrule the other exceptions to auditor’s accounts A and B. We are, therefore of opinion that auditor’s accounts A and B are cоrrect, *560except as to the allowance of counsel fees, and that auditor’s accounts X and Y were properly rejected. The order of Court, dated the 10th day of November, 1890, finally ratifying and confirming auditor’s account B in so far as it allows counsel fees will be reversed, and said order in other respects will he affirmed. The order of like date, ratifying and confirming auditor’s account A, will he affirmed, and this cause will he remanded to the end that an account may he stated in accordаnce with these views. The costs to be paid out of the trust estate of James McG-raw.

(Decided 18th June, 1891.)

Reversed in part, and . affirmed in part, and cause remanded.