Wingert v. Gordon

• Decision Date: 12 November 1886
• Citation: 6 A. 581,66 Md. 106
• Parties: WINGERT AND OTHERS v. GORDON.
• Court: Maryland Court of Appeals

6 A. 581

66 Md. 106

WINGERT AND OTHERS v. GORDON.

Court of Appeals of Maryland

November 12, 1886

Appeal from circuit court, Alleghany county. In equity.

Appeal from an order overruling a demurrer to a petition filed by the appellee in the case of Love v. Dilley. The facts are stated in the opinion.

I Frank Seiss, for appellants.

Wm. Brace and Benj. A. Richmond, for appellee.

MILLER J.

This appeal is from an order overruling a demurrer to a petition filed by the appellee in the case of Love v. Dilley, asking that a reasonable compensation for his professional services in behalf of the appellants may be ascertained, and paid to him out of their share of the funds under the control of the court in that case. These funds consist of the personal estate, and the proceeds of the sale of the real estate, of Joseph Dilley deceased, who died intestate. The history and character of the litigation over that estate will be found fully stated in the reports of the cases of Dilley v. Love, 61 Md. 603, and Love v. Dilley, 64 Md. 238; S. C. 1 A. 59, and 4 A. 290.

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 lifetime, 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 controversy, 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 him for his services, and he now intervenes in the case by petition, and asks the court to have proof taken before the auditor as to the value of his services, and that the same be charged upon and paid out of his clients' share of the fund.

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 be driven to an original bill. The charge is not upon all the separate estates 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 article 45, § 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 husband and wife to create an equitable lien or charge upon the separate estate of the latter, secured to her by the Code, by a parol contract made by them jointly?

It was the settled law of 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 v. Eccleston, 37 Md....