Browne v. Preston

Bartol, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City, refusing to send certain issues of fact to a Court of Law for trial. In order to understand the nature of the case and the questions involved, it seems to be necessary to preface what we have to say with a brief statement of facts. Mrs. Mary E Browne, .deceased, left a will devising her estate to the Rev. Thomas Lilly, and appointing him her sole executor ; he died before the testatrix, leaving a will by which he devised all his property and estate to ³⁷⁷ t.he President and Directors of Georgetown College, a corporation in the District of Columbia, and appointed them liis executors; after his death his heirs at law and legal representatives conveyed to the College all their title and interest in his estate.

After the death of Mrs. Browne a contest arose in the Orphans’ Court with respect to the right of administration on her estate; which was decided in this Court in Pres. &c. of G. Town College, et al. vs. Browne, 34 Md., 450 . The appellant O. C. Browne was her brother, and one of her heirs at law, and filed a caveat to her will, alleging for the reasons therein stated, that it was invalid and ought not to be admitted to probate. To maintain the caveat the appellant employed the appellees as his attorneys, and entered into an agreement with them with respect to the compensation they should receive for their services, which has given rise to the present controversy. The agreement is as follows: “It is hereby agreed this 23rd day of February, 1871, between Charles C. Browne, of the first part, and John P. Preston and R. H. Goldsborough of the second part, that the said Preston and Goldsborough will further prosecute the suit or suits of Charles C. Browne vs. the President and Directors of Georgetown College, both at law and in equity, (the purpose of said suit being the recovering for the next of kin, the estate of the late Mary E. Browne, deceased,) to its or their final determination, without charge to the said Charles C. Browne, individually ; unless the said estate is recovered, and if said estate or any part of said estate should be recovered, then the said Browne is to pay his proportion as heir of said estate, of such fee as the Orphans’ Court of Baltimore City shall allow.

And it is hereby further agreed by the said parties of the first and second part, that the said Preston and Goldsborough shall receive for their professional services in said suit or suits, such remuneration ³⁷⁸ from the estate of the said Mary E. Browne, as the said Court shall allow. And the said Charles .0. Browne hereby agrees on his part, that he will not dispute the award of said Orphans’ Court, and in the event of his being appointed administrator of said estate, that he will pay unto said Preston and Goldsborough, without delay, such sum for their said services as the Orphans’ Court shall allow as aforesaid. “ (Signed) R. H. Goldsborough, “John F. Preston, “Attorneys.” Appended to the above is an agreement of Goldsborough with respect to his individual indebtedness to the appellant, not material to this case. It appears that after the filing of the caveat to. the will, issues thereon were sent by the Orphans’ Court to a Court of Law for trial; and the appellees, acting as attorneys under the foregoing agreement, engaged in the trial on behalf of the caveator, but unsuccessfully; a verdict being rendered sustaining the will.

The appellees reserved exceptions to the ruling of the Court at the trial; and took an appeal thereon to this Court. While the appeal was pending, a compromise was effected between the parties whereby the appeal was dismissed, the caveat abandoned; and for the sum of $15,000.00 the whole estate of Mrs. Browne devised by her will, was conveyed to the appellant. He had before that time been appointed administrator with the will annexed, in accordance with the decision of this Court in 34 Md., 450 , (before referred to.) The appellees not having received compensation for their professional services, rendered under the agreement; filed their petition in the Orphans’ Court, against the appellant as administrator, c. t. a. of Mary E. Browne, praying the Court “ to pass an order allowing them for ³⁷⁹ their said services such fee as the Court may deem proper and right.” To this petition the áppellant answered, denying that anything was due the appellees under the agreement, and alleging that the Orphans’ Court has no jurisdiction in thej>remises. The Court proceeded to hear the case and after