Mudge v. Mudge

• Decision Date: 04 April 1928
• Docket Number: 36.
• Parties: MUDGE v. MUDGE.
• Court: Maryland Court of Appeals

141 A. 396

155 Md. 1

MUDGE v. MUDGE.

No. 36.

Court of Appeals of Maryland

April 4, 1928

Appeal from Orphans' Court, Baltimore County; John T. Cockey and Francis G. Shepperd, Judges.

"To be officially reported."

Proceeding by Margaret H. Mudge against Arthur P. Mudge, executor of estate of Edmund Tileston Mudge, deceased, to obtain construction of the will of the deceased. From an order authorizing payment of fees to attorney for Margaret H Mudge, the executor appeals. Reversed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES. PARKE, and SLOAN, JJ.

David Ash, of Baltimore, for appellant.

Philander B. Briscoe, of Baltimore, for appellee.

PATTISON J.

The appeal in this case is from an order of the orphans' court of Baltimore county, authorizing and directing the appellant, Arthur P. Mudge, executor of Edmund Tileston Mudge, deceased, to pay to Philander B. Briscoe, counsel for Margaret H. Mudge, the appellee, the sum of $1,000 for his services in connection with the filing of a petition in equity, in the circuit court for said county, asking for the construction of the will of Edmund Tileston Mudge.

Arthur P. Mudge was the only son and child of the testator, and to him his father devised his entire estate, after providing for the payment of certain life insurance policies to his widow should she survive him, and the payment of a legacy to his granddaughter, Margaret H. Mudge, daughter of Arthur P. Mudge by his first wife.

The construction of the will was asked for by the granddaughter because of the language used by the testator in bequeathing to her the legacy mentioned, she claiming that the amount she was to receive thereunder was $5,000 more than her father the executor, thought she was entitled to under the will. The court below decided adversely to her claim, and an appeal was taken to this court. Mudge v. Mudge, 153 Md. 291, 138 A. 20. This court, on appeal, reversed the decree of the lower court, and held that she was entitled to the additional sum of $5,000, claimed by her, and remanded the case, that a decree might be passed in conformity with its opinion.

After the passage of such decree by the lower court, the appellee filed her petition in the orphans' court alleging the employment by her of Philander B. Briscoe as her solicitor in the proceedings asking for a construction of the will, and praying that he be allowed a fee for his services in connection therewith, out of the corpus of the estate. The petition was answered and a hearing had, and the court passed the order appealed from, authorizing and directing that the sum of $1,000 be paid to her said solicitor as prayed in the petition. There is, as we gather from the record and the briefs of the counsel, no question made as to the amount of the fee; the sole question being whether or not the fee should be allowed out of the corpus of the estate, causing the burden of its payment to fall exclusively upon Arthur P. Mudge, the residuary devisee and legatee under the will.

The decision of this question involves the consideration of the power of the orphans' court to pass orders of this charactér. The orphans' court has only a special and limited jurisdiction and can exercise no authority not expressly given to it by law. Section 271 of article 93 of the Code (1924); Townshend v. Brooke, 9 Gill (Md.) 90; Bowie v. Ghiselin, 30 Md. 553; Norment v. Brydon, 44 Md. 116; Browne v. Preston, 38 Md. 373; Taylor v. Bruscup, 27 Md. 225; Dalrymple v. Gamble, 68 Md. 156, 11 A. 718. It can only direct the allowance of counsel fees out of an estate in cases where the statute authorized such an allowance. The statute does not in express terms authorize the allowance of counsel fees, but it (section 5 of article 93 of the Code) provides for the allowance "for costs and extraordinary expenses (not personal), which the court may think proper to allow, laid out in the recovery or security of any part of the estate." It is under this general provision that counsel fees have, in a number of cases, been allowed out of estates. Miller's Equity Jurisprudence, p. 671; Glass v. Ramsey, 9 Gill (Md.) 456; Ex parte Young, 8 Gill (Md.) 285; and other cases.

It would be difficult to lay down any fixed rule of unvarying application by which the question of the right or power of the orphans' court to allow fees out of estates may be determined. Whether an estate should be charged with counsel fees for services rendered in litigation of this general character must be determined largely from the circumstances of each particular case, having due regard for the provisions of the statute, upon which such power is exercised, authorizing the allowance of counsel fees where the services are rendered in the recovery or security of the whole or some part of the estate. To be allowable, the services of the attorney, for whom a fee is asked, should, in some way, be beneficial to the estate, either by the enlargement or the protection of it, and not where the only question to be decided is to whom the estate, or any part of it, shall go and in what proportions. Dalrymple v. Gamble, supra; Gorton v. Perkins, 63 Md. 589, 3 A. 291; Koenig v. Ward, 104 Md. 564, 65 A. 345; Compton v. Barnes, 4 Gill (Md.) 55, 45 Am. Dec. 115; Miller's Equity Jurisprudence, 671, par. 567, and notes thereto.

The appellee, in support of her claim for counsel fees, cites the cases of Clayton v. Stein, 135 Md. 684, 109 A. 444, and Walker v. Waters, 118 Md. 203, 84 A. 466. Neither of these appeals was from an order of the orphans' court, but from orders of a court of equity, where the power of the orphans' court to pass orders of this character was in no sense involved.

In the first of these cases, the trustees named in the will of ...