Koenig v. Ward

Schmucker, J., delivered the opinion of the Court. The appellants are the widow and five of the children of the late Frederick W. Koenig and the appellees are the administrators of his personal estate. The appeal is from an order of the Orphans’ Court of Baltimore County overruling the appellants’ exceptions to an administration account filed by the appellees and finally ratifying the account. The matter excepted to was the allowance, out of the estate, of counsel fees to the appellees for services rendered by them as attorneys for Elizabeth Becker, a daughter of Frederick W. Koenig, in prosecuting a caveat filed by her to an alleged last will of her father which had not been admitted to probate.

The caveat was successful and the alleged will was judicially delared not to be the will of Koenig and his estate consisting of real and personal property was distributed among his heirs at law and distributees. Under the alleged will Elizabeth Becker and Mrs. McDevitt, her sister, were given no part of the father’s estate so that the success of the caveat enured especially to their benefit and operated to the prejudice of the appellants in so far as the estate given to them under the alleged will was diminished by the shares passing to Mrs. Becker and Mrs. McDevitt under the intestacy. The appellees seek to support the action of the Orphans’ Court in allowing the counsel fees in question because the litigation for which they were paid proved beneficial to the estate, and contend that its allowance was within the jurisdiction conferred upon the Orphans’ Court over the estates of intestates by Art. 93, sec. 234 of Code of 1904. They cite no cases on their brief, but in the argument they relied upon ex parte Young, 9 Gill, 285 .

This Court has had frequent occasion to consider and pass upon the allowance by Orphans’ Courts of counsel fees out of the estate of deceased persons for legal services rendered in prosecuting or defending proceedings under caveats to wills. ⁵⁶⁶ It has uniformly held in such cases that, where a caveat is filed after a will has been admitted to probate^and letters testamentary granted, the executor is entitled to counsel fees out of the estate because it is his duty under such circumstances to defend the will. But where a caveat is filed before the will has been admitted to probate, and the services of counsel are rendered to the parties interested as heirs, distributees or devisees, the Orphans’ Court has no jurisdiction to allow compensation for such services out of the estate. Townsend v. Brooke, 9 Gill, 90; Gorton v. Perkins, 63 Md. 592 ; Dalrymple v. Gamble, 68 Md. 163 ; Miller v. Gehr, 91 Md. 714 ; Tilghman v. France, 99 Md. 613 . In ex parte