Grabill v. Plummer

Briscoe, J., delivered the opinion of the Court. The appeal in this case is taken from an order of the Orphans’ Court for Frederick County. On the 4th day of December, 1901, the appellant, Maria L. Grabill, administratrix pendente lite of P. Louisa Plummer, deceased, filed a peti ⁶⁰ tion in the Orphans’ Court of Frederick County, asking to be allowed in her account as such administratrix a certain sum as reasonable counsel fees, for successfully defending- in the Circuit Court for Frederick County, a caveat to the will of P. Louisa Plummer, deceased, and “that these fees be paid first out of the corpus of the fund.” On the 5th of December, 1901,' the appellee, Reuben N. Plummer answered the petition, stating among other things that as the surviving husband of P. Louisa Plummer, he had denounced all interest under the will; that he was not a party to the caveat proceedings and does not take any interest under the will in controversy ; that his interest in the estate is derived under the law, and “that his portion of the estate ought not to be diminished by being charged with any part of the costs, and expenses incident to the caveat litigation ; that in the final distribution of the estate the counsel fees and costs incurred in defending the will against the caveat should be charged to the interest of the parties taking under the will.” On the 9th day of December, 1901, an order was passed by the Orphans' Court of Frederick County directing that the costs incurred on account of the caveat contest “shall be charged to and paid out of the portion of the estate passing under the will in course of administration and that the portion of the estate to which the surviving and renouncing husband is entitled under the law shall be distributed to him clear of expenses and counsel fees. ” And it is from this order that this appeal hás been taken. The first question to be considered by us is presented on a motion to dismiss the appeal.

There can be no question that this motion must prevail because the appellant, as administratrix pendente lite of P. Louisa Plummer deceased, has no