Clayton v. Stein

Urner, J., delivered the opinion of the Court. In the case of Smith v. Baltimore Trust Co., 133 Md. 404 ,. this Court affirmed a decree construing the will of James E. Clayton and holding that as to the one-sixth of his. estate involved in the proceedings he died intestate. As.a result of the intestacy thus adjudicated the affected portion of the testator’s estate was decreed to be vested in his sister, Nannie Clayton, as his only heir at law. According to the theory of construction which failed of acceptance the estate in question would have passed to the children of two deceased aunts-of the testator.

The petition for the construction of the will was filed by the trustees to whom the estate had been devised under limitations which had terminated at the time of the institution of the proceedings. Of the parties whose interests were adverse to the theory of intestacy, one adult defendant by his answer merely stated his desire for such a decree as the Court might- deem proper, and the guardian ad litem of the only infant defendant submitted her rights to-the Court’s protection, while all the other parties having the interest just referred to asserted it in their answers. Only one of the defendants, however, appealed from the. decree-. After it had been affirmed the appellant’s solicitors applied for and obtained an order of the Court below directing the-auditor to allow them out of the fund'for distribution a fee of $500 for their services in that Court and on appeal, subject to the usual right of exception.

To this allowance, as. made in the audit, exceptions were filed by the testator’s sister, to whom the fund had been decreed to- be payable. The pending appeal is from an order overruling these exceptions, and ratifying the audit. The record includes a stipulation that the services rendered by the present appellee’s solicitors in the proceeding for the- ⁶⁸⁶ construction of tire will required much time and effort, that the amount involved is about $10,000, that $500 is a moderate charge for such services, that these solicitors were not employed by the trustees or the party decreed to be entitled to the fund, and that they have received no fee from the parties they represented. It thus appears that no question is raised as to the amount of fee allowed the appellee’s solicitors, and that the only inquiry is whether it is properly chargeable against the fund decreed to be distributable to the present appellant.

Upon the principle of the decisions in B. &.O. R. R. Co. v. Brown, 79 Md. 442 ; McGraw v. Canton, 74 Md. 554 , and other cases of that class; it is contended that the fee under consideration ought not to be allowed out of the fund awaiting distribution, because the solicitors for whom it is claimed were not employed by the custodians of the fund or the party adjudged to be entitled to receive it, to whose interest the services of the appellee solicitors were not beneficial but antagonistic. If this case were analogous in its origin and purpose to the cases just cited, it would, of course, be subjected to the rule there applied. But the litigation is not susceptible of being thus classified. It is different from the ordinary proceeding for the recovery or protection of funds against which fees may be sought to be charged.

The occa.sion for this proceeding is the failure of a testator to express with sufficient clearness his intention as to the disposition of his estate. It is because of the doubtful meaning of the terms which he has employed that the parties are required to come into Court for the interpretation of the will in reference to which their interests in the estate are to be ascertained. In view of the special nature of the difficulty which occasions such a proceeding, it is well settled that the estate is properly chargeable with the costs when a judicial construction of a will is reasonably necessary (Buchanan v. Lloyd, 64 Md. 313 ), and there can be no doubt that in such a case similar provision may be made for the payment of a ⁶⁸⁷ fee to the counsel by whom the proceeding was instituted, especially where such action is, taken by executors or other fiduciaries desiring and needing direction by the Court as to the performance of testamentary duties. There are cases in which such allowances have been made also to counsel for defendants.

In other cases fees have been allowed out of the .estate only to counsel for executors- or trustees, by whom the proceeding was originated. Numerous decisions dealing with such questions are cited in 40 Cyc. 1868. In Hamilton v. Trundle, 100 Md. 276 , it was held that a court of equity in