Dessel v. Goldman, Jr.

Hammond, J., delivered the opinion of the Court. At issue here is whether the Orphans’ Court of Anne Arundel County abused its discretion in allowing the appellee, a lawyer with an office in Baltimore, a counsel fee of $1,100 payable from the estate of a decedent. Gertrude Dessel Kratsch died at a nursing home in Baltimore on September 17, 1960. She had long lived in Bar Harbor, Anne Arundel County, and on July 20, 1960, less than two months before she died, the appellee had prepared her will in which she recited that she was a resident of that County and by which she devised her home in Bar Harbor to a nephew.

Under her will the nephew and a niece were named executors, and they, on appellee’s advice, probated the will in the Orphans’ Court of Baltimore City. Soon thereafter, a brother of the decedent (the father of the executrix) petitioned the Orphans’ Court of Baltimore City to revoke the probate on the ground that Mrs. Kratsch had been a resident of Anne Arundel County. The appellee filed an answer, and the court held a hearing which lasted an hour or two. On January 10, 1961, the court determined that Mrs. Kratsch had been a resident of Anne Arundel County and revoked the probate of her will.

No appeal was taken. The brother filed notice of intention to caveat the will in the Orphans’ Court of Anne Arundel County, which, on March 31, 1961, granted letters of administration pendente lite to the nephew and niece. The niece retained other counsel, and the appellee continued to represent the nephew. ⁴³⁰ The caveat was dismissed with prejudice. The appellee concedes that since the notice of intention to caveat was filed before probate of the will in the proper forum, he is not entitled to payment from the estate for his legal services in sustaining the will.

The estate had a value of $130,000 — two ground rents appraised at a total of $3,000, a house, which was returned in the Federal estate tax return at $7,150 “based on insured value of house and assessed value of land,” Series E Savings bonds worth $38,506.40, and savings accounts aggregating; some $80,000. The appellee did not file the preliminary notice with the Internal Revenue Service within sixty days of death, as the law required, and did not file the estate tax return within fifteen months. He took no action in regard to the Federal estate tax until February 15, 1962 (some seventeen months after the date of death) when, prodded by counsel for the niece-administratrix pendente lite, he deposited $8,500 with the Internal Revenue Service to stop the running of interest (appellee personally has assumed the payment of interest assessed by the government for the late filing). The return was filed in June 1962.

Appellee also prepared and caused to be filed a fiduciary United States income tax return and the decedent’s last United States and Maryland income tax returns. All were filed late. The Orphans’ Court of Anne Arundel County allowed appellee a fee of $1,500 on his ex parte petition signed by only one of the administrators pendente lite. The brother filed a petition to rescind the ex parte order and excepted to the allowance of a fee.

The Orphans’ Court took testimony, heard argument and, on October 11, 1962, allowed a counsel fee of $1,100 and ordered the costs of a transcript of the record to be paid from the estate. The appeal is from the order of October 11, 1962. However, the question of the propriety of the allowance of costs was not presented as a question or argued in appellant’s brief, and