66 Md. 106 | Md. | 1886
delivered the opinion of the Court.
This appeal is from an order overruling a demurrer to a petition filed by the appellee in the case of Love vs.
The deceased left a number of heirs who were entitled to his property by the laws of descent and distributions. To these he had in his life-time paid various sums of money, but to some more than to others, and the controversy was whether these payments should be treated as advancements, and if so, what was the amount advanced to each. Three - granddaughters, being daughters of a son whose death occurred shortly after - that of the intestate, were entitled to one-fifth of the estate. They are married women, and they and their husbands were parties to the suit, have demurred to the petition, and are the appellants. The amount they could receive depended upon their success in -sustaining and enhancing in amount the advancements alleged to have been made to each of the other heirs, and in resisting or cutting down those alleged to have been made to their father, and the same thing was true as to the interest and amount to be received by each of the other parties.' This was the cdntroversy, and it bears a close analogy to a case where several creditors are contesting inter sese their rights and priorities to a fund in Court, and where each must have his own counsel. In this contest the appellants employed the appellee as their solicitor, and he conducted the litigation (which was warm and protracted) in their behalf, in the Court below, and argued it for them on appeal in this Court. They have refused or neglected to pay
His claim is based upon the ground that he has acquired by express contract, a lien or charge upon the fund, which is enforceable in equity, and if this be true, we see no objection to the mode he has adopted of enforcing it. We think he has the right to come in by petition and should not he driven to an original bill. The charge is not upon all the separate estate of these married women, if they have any other, but upon their share of this fund.
The contract is stated in the petition and admitted by the demurrer. The averment is that these married women and their husbands employed the petitioner to conduct and manage the case on their part, and generally to conduct the cause for them and for their interest, “ with the understanding and agreement between the petitioner and said parties so employing him, that he should be compensated for his services by the payment of reasonable fees and commissions out of the money distributed to said parties in said cause, as the same should become' due and payable to them.” It is not averred that this contract was in writing, and we assume it to have been a simple parol contract between these married women and their husbands on the one side, and the appellee on the other. It must also be conceded that these femes covert held their share of this fund under Art. 45, sec. 2, of the Code, which declares that a married woman “shall hold” the property owned or acquired according to the provisions of the preceding section “for her separate use, with power of devising the same as if she were a feme sole, or she may convey the same by a joint deed with her husband.” The question then comes to this, is it competent for hus
It was the settled law df this State before the adoption of the Code, that a married woman, in the contemplation of a Court of equity, occupied the position of a feme sole, in respect to her separate estate, and where the deed or instrument creating the separate use contained no limitation or restriction upon the power of disposition, she was at liberty to dispose of the property as a feme sole, without the assent or concurrence of either the husband or trustee. The Code requires that the right and power of disposition by the wife, other than by way of devise, shall be exercised with the concurrence of her husband. But in Hall & Hume vs. Eccleston, 37 Md., 510, where this section of the Code was first construed by this Court, it was held that it was not the intention of the Legislature in imposing this restriction upon the power of disposition, to prevent the husband and wife from contracting so as to •charge or encumber the estate, nor to divest “the Courts of their well defined and long established equity power and jurisdiction to enforce such contracts.” The decision in that case clearly goes to the extent of holding that the husband and wife may charge or encumber the separate estate of the latter, held by her under the Code, by'the same kina of contract, if made by them jointly, with which a married woman alone might, before the Code have charged or encumbered the estate which she held under an instrument containing no restriction upon her ■power of disposition, and that Courts of equity have the same power to enforce the contract in the one case as in the other.
In the English Courts there has been much discussion, and difference of opinion among eminent Judges, as well as conflicting decisions, upon the question as to how the wife’s estate could be pledged or charged, but we must
We thus dispose of the case upon the distinct ground of a charge created by an express contract, and not upon the ground that a solicitor, as such, has any lien for his professional services upon the money he may recover for his client in a contested suit in equity, nor upon the ground that the Court would, in a case like this, be authorized by any established practice to make an allowance to a solicitor for services rendered to his client.
Order affirmed, and cause remanded.