Bell v. Funk

Fowler, J., delivered the .opinion of the Court. Nancy Lechler, late of Washington County, in this State, died, leaving a will, which was duly admitted to probate in the Orphans’ Court of said county, the appellant, Louisa M. Bell, having been named therein as executrix. During the settlement of the estate of said deceased, the executrix presented for passage by the Orphans’ Court a promissory note for six thousand dollars, purporting to have been signed by the testatrix. ³⁷⁰ John E. Eunk and others, who were remaindermen and residuary legatees under said will, objected to the payment of the note, because it was a forgery, or procured by fraud or undue influence, or without consideration. The appellant, thereupon, prayed issues to be sent from the Orphans’ Court to the Circuit Court for Washington County to have the validity of said note determined, and the appellees were made defendants in said proceeding.

Upon the trial of said issues the jury failed to agree, and the cause was standing for trial at the November Term, 1891, when, in October previous thereto, the appellees filed their petition in the Orphans’ Court, setting forth the above facts, and praying for an allowance out of the estate “for costs and counsel fees already incurred, and thereafter to be incurred, in defending said estate from the claim of the appellant, based upon said note. Upon this petition the Orphans’ Court passed an order on the second of October, 1891, directing the appellant to be summoned and appear, on or before a day certain, to show cause why the costs and fees should not be allowed as^ prayed. In compliance with this order, the appellant duly filed her answer, alleging that said note was valid, and denying all the allegations in reference to fraud; — alleging, also, that the issues had not yet been tried; and that there is no provision of law which authorizes the Orphans’ Court to appropriate any part of the estate of the testatrix to pay the costs and fees incurred by the petitioners. On the 27th October, after considering the foregoing petition and answer, and having heard argument thereon, the Orphans’ Court passed an order directing the appellant as executrix to pay the sum of two hundred dollars to the counsel of the petitioners, as a fee.

From this order the executrix has appealed. As will be perceived, the question for consideration is a very narrow one.' We know of no authority, nor has ³⁷¹ •any been pointed out by the counsel of the appellees, hy which the order appealed from can be justified. It happens that Mrs. Bell is both executrix and creditor, and when she presented