Clayton v. Stein

Thomas, J., delivered the opinion of the court. This is the second appeal in this case. The case as presented by the former appeal ( 135 Md. 684 ) was stated by Judge Urner, as follows: ⁵²¹ “In the case of Smith v. Baltimore Trust Co., 133 Md. 404 , this Court affirmed a decree construing the will of lames 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 construction of the 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 ⁵²² 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.”