McCurley v. McCurley

• Decision Date: 10 April 1883
• Parties: JAMES McCURLEY, JR., Executor of James McCurley v. SUSANNAH S. McCURLEY.
• Court: Maryland Court of Appeals

60 Md. 185

JAMES McCURLEY, JR., Executor of James McCurley v. SUSANNAH S. McCURLEY.

Court of Appeals of Maryland

April 10, 1883

Appeal from the Circuit Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before Miller, Stone, Alvey, and Ritchie JJ.

Samuel Snowden, for the appellant.

John H. Handy, for the appellee.

Ritchie J., delivered the opinion of the court.

The appellee having filed her bill for a divorce a mensa et thoro, in the Circuit Court of Baltimore City, against her husband, James McCurley, followed the bill with a petition alleging her want of means to carry on her suit, and praying that her said husband be required to furnish her a reasonable sum of money to be paid her counsel for conducting her case.

This petition was resisted by her husband; but the court passed an order directing him to pay to complainant's counsel of record the sum of one hundred dollars "as a retaining fee in her said case."

An answer to the bill having been put in by the said defendant denying the complainant's right to a divorce, exceptions were taken to the answer; which exceptions were overruled; and a general replication to the answer having been filed, a commission, by agreement of counsel was issued on the 15th of March, 1880, to take testimony.

Under this commission a large amount of testimony was taken; but before a decree was passed the defendant died, on or about the 8th of March, 1881, having appointed the appellant executor of his last will and testament, who duly qualified as such. Thereupon, the complainant by her counsel of record suggested the defendant's death and prayed that subp na might issue against said executor, that, "the rights which survive in this suit may be determined."

The appellant, as said executor, demurred to this petition to make him a party; but his demurrer was overruled, and process issued accordingly.

The complainant then filed her second petition for counsel fees, showing the character of the services rendered by her counsel, reciting the previous action of the court directing her husband to provide a retaining fee for them, and praying an additional allowance of $900 to pay their bill for that amount, as a reasonable charge, looking to the nature of their services and the estate of her husband, alleged to be worth $100,000. The amount of this fee was certified by two disinterested members of the bar, of weight and experience, to be fair and reasonable. But, by agreement of the respective solicitors, no objection is made to the amount of the fee charged; the resistance to its allowance being on other grounds.

The petition having been set for hearing by order of the court, and notice of the same having been served on the executor, he filed his answer objecting thereto. The material ground of defense, in view of the said agreement as to the mere amount of the fee, is, as set out in the answer, that, "the matter of the claim being wholly at law, and there being no fund under the jurisdiction of this court out of which the same can be paid, said petition should be dismissed."

After hearing upon the petition and answer, and considering the papers and original evidence in the cause, it was by the court adjudged, ordered and decreed, "that the defendant pay to the complainant for John H. Handy and William T. Roberts, her solicitors, the sum of $900, as and for the counsel fees of said solicitors, with all the costs of their proceedings."

From this order and the order overruling his demurrer to the petition for subp na against him as the executor of said James McCurley, deceased, the defendant prayed an appeal to this court.

The simple question for us to decide is, whether the husband of the appellee having died before decree was reached upon the proceedings for divorce, the court had jurisdiction to make the executor a party to the suit for the purpose of answering the appellee's application for an allowance to pay her counsel for services rendered in the cause up to the death of her husband, and to order him to pay the same.

The general rule in regard to allowing the wife temporary alimony and a sum of money to carry on her suit in divorce proceedings, is thus stated in 2 Kent, sec. 99, note, where a number of authorities are cited:

"Pending a suit in chancery by the wife, or in the consistory court by the husband, for a divorce, it is a general rule of ecclesiastical law that the court may, under proper circumstances, and in its discretion, allow the wife, by an order on the husband, a sum of money for carrying on the suit, as well as for immediate alimony."

Bishop in his work on Marriage & Divorce, vol. 2, sec. 387, thus refers to the nature of the wife's allowance for the expenses of the suit:

"This sustenance is in fact a sort of alimony; the one being for the defraying the ordinary expenses of the wife in the matter of living; the other being for the same purpose in respect to the matter of the suit. The husband, who has the control of the money out of which, were the parties dwelling together, the wife would be entitled to draw her support, while the wife is without means which she herself can command, should not only be made to aliment the wife as to her food and the like while the suit is going on, but aliment her also as regards the suit; otherwise she would be denied justice."

This general right...