Hamilton v. Trundle

• Decision Date: 13 January 1905
• Citation: 59 A. 719,100 Md. 276
• Parties: HAMILTON v. TRUNDLE.
• Court: Maryland Court of Appeals

59 A. 719

100 Md. 276

HAMILTON v. TRUNDLE.

Court of Appeals of Maryland

January 13, 1905

Appeal from Circuit Court No. 2 of Baltimore City; George M. Sharp Judge.

Petition by W. Burns Trundle, an attorney at law, for an allowance of counsel fees for services rendered in the cause of one Joynes and others against W.H.A. Hamilton and others. From an order granting the petition, said Hamilton appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

Wm H.A. Hamilton and Edwin J. Griffin, for appellant.

W Burns Trundle, in pro. per.

BOYD J.

This is an appeal from an order of circuit court No. 2 of Baltimore City allowing the appellee a counsel fee for services in this court and in the court below in the case of Joynes et al. v. Hamilton et al., decided at the January term, 1904, of this court, to be reported in 98 Md. 665 (s.c., 57 A. 25). It was a special case stated under the provisions of article 16, § 184 et seq., Code Pub.Gen.Laws 1889. The controversy there was a construction of the eighth clause of the will of William Hamilton, and the codicil to his will. By that clause the testator had left to Evelyn and Julia Joynes, his granddaughters, a lot of ground on Franklin street in Baltimore City. After the execution of his will, for a consideration of $500 paid him, the testator leased a lot to a church, subject to a ground rent of $120 per annum, giving the church the right to redeem it at any time for the sum of $2,000, and by the codicil left the ground rent to his two granddaughters. Before his death the church redeemed the ground rent, and the question was what interest, if any, the granddaughters had in the money received from it. The court below determined that they had no interest in the $500 or the $2,000, and an appeal was taken to this court. We held that under the codicil the granddaughters had no right to the $500, but that there was no ademption of the legacy, and they took the fund of $2,000, subject to the limitations expressed in the codicil. The decree was reversed and the cause remanded, to the end that a decree might be passed in accordance with the opinion; "the costs to be paid by the executors out of the estate." A decree was passed by the court below on March 16, 1904, declaring that these granddaughters were entitled to the benefit of the $2,000, with such interest as the executors received thereon, after the end of one year from the death of the testator; and the executors were directed to invest the principal of said fund, subject to the limitations expressed in the codicil. The decree concluded, "And it is further ordered that said executors pay all the costs of this suit out of the estate of said deceased." On the 18th of March the appellee filed his petition asking for a fee. The executors answered, alleging that they had paid all the taxable court costs in the lower court and this court; that the court had no jurisdiction over the funds, as said estate was being administered by the orphans' court of Baltimore City; and that the services rendered by the appellee were not for the executors or the estate, but he was employed by persons antagonistic to the estate and those from whom he now seeks compensation. The case was heard on petition and answer.

Under the view we take of the case, it will be unnecessary to consider all of the questions raised, as we are of the opinion that the lower court had no power to require the executors to pay the fee. The petition alleges that the estate of William Hamilton was worth more than $50,000. Circuit court No. 2 did not take jurisdiction of the settlement of the estate, and, so far as appears from the record, had nothing whatever to do with it, excepting to determine the questions raised by the special case stated, with reference to the proceeds of the sale of this lot--the $500 paid when the lease was made, and the $2,000 paid when it was redeemed. That court and this determined that the Misses Joynes had no interest whatever in the $500, and it is difficult to understand how there could be any question about that; and after the case was reversed the circuit court, by its decree, expressly ordered the $2,000 to be invested subject to the limitations in the codicil. In short, the decree of the court disposed of all the funds of the estate it took jurisdiction of.

The provision in the decree that the executors "pay all the costs of this suit out of the estate of said deceased," presumably, was not intended to mean more than what the decree of this court provided for when it said, "the costs to be paid by the executors out of the estate," for we had already disposed of the question of costs. It cannot be successfully contended that such a decree includes anything more than the costs which are taxed in the case. No attorney's fee is ever included in the taxed costs, excepting the appearance fee, unless there be some special statute authorizing it. When executors or administrators are parties to suits either at law or in equity, they, like other parties, may, by reason of the result of the case, or by direction of the court, when...