Gorton v. Perkins

Robinson, J., delivered the opinion of the Court. The testator devised his entire estate to his wife by a second marriage, and appointed the appellant executor of his will. Before the will was admitted to probate, a caveat was filed by the daughter of the testator, and only child by the first marriage. The caveat was subsequently abandoned on the payment of thirty-five hundred dollars by the widow and sole devisee under the will, to the daughter, the caveator.

This is an appeal from an order of the Orphans’ Court dismissing the petition of the executor, in which he asked authority from said Court to pay eight hundred dollars, in addition to six hundred dollars, already paid the counsel who represented the defendants in this litigation. Now it is well settled that when a caveat is filed after a will has been admitted to probate and letters testamentary have been granted, the executor is entitled to an allowance for counsel fees, because it is his duty under such circumstances to defend the will thereby assailed. Glass, et al. vs. Ramsey and Jenkins, 9 Gill, 456 ; Compton vs. Barnes, et al., 4 Gill, 55 . Whether an executor is entitled to an allowance for counsel fees in resisting a caveat to a will before the will has been admitted to probate, is a question not necessary to be decided in this case.

The caveat was filed, it is true, before the will was admitted to probate, but it does not appear, from the face of this petition, that the counsel were employed by the executor to resist the caveat, nor that their services were rendered upon the faith of an agreement on his part that they should be paid by him as executor. On the contrary, the several allegations, when considered together, plainly show, that the agreement for compensation, and the ⁵⁹¹ amount was made between the counsel and the widow, the sole devisee under the will, and that the estate in the hands of the executor was the fund out of which such compensation was to be paid. In the first part of the petition, it is alleged that upon the filing of the caveat, Mr. Carter and Mr. Higgins were employed to represent the defendants, “ Mr. darter having been employed at the instance of the widow, and Mr. Higgins at the suggestion” of the executor. How, if the petition had stopped here, it might be inferred that Mr. Higgins was employed and