Lusby v. Nethken

McWilliams, J., delivered the opinion of the Court. This has to do with a minor rumpus in the Lusby-Nethken vendetta. For the full flavor thereof see Lusby v. Nethken, 256 Md. 469 (1970), and Nethken v. Lusby, 262 Md. 588 (1971). It will be recalled that Caroline Pritts Nethken died 2 October 1966 and that letters testamentary were issued to her son Robert on 17 October 1966.

On or about 7 April 1967 Louise Nethken Lusby and George Nethken, who with their brother Robert are the residuary legatees, filed a caveat to Caroline’s will. The caveat was dismissed on 12 February 1968. Upon Robert’s petition the Orphans’ Court of Baltimore County, on 5 May 1970, allowed a counsel fee of $6,400 to Robert’s counsel for services rendered in connection with the administration of the estate. From the order overruling the exceptions filed by Louise and George they have taken this appeal.

Louise and George contend that counsel’s services were only minimal in the administration of the estate. By far the greater portion of counsel’s time and effort, they say, was given over to Lusby (256 Md.) where Robert was sued as an individual rather than as executor. Robert concedes that a fair share of counsel’s efforts eventually were useful in Lusby, but he insists that the award is reasonable compensation for the services rendered the estate. The power of an orphans’ court to direct the payment of a counsel fee out of the corpus of an estate is basically statutory.

Gradman v. Brown, 183 Md. 634 (1944); Mudge v. Mudge, 155 Md. 1 (1928). The controlling statute was Code (1964 Repl. Vol.), Art. 93, § 10, which, before its repeal and reenactment, Code (1969 Repl. Vol.), Art. 93, § 7-602, read as follows: ⁵⁸⁶ “For legal services rendered by an attorney at law to an estate or to an executor or administrator of an estate, the orphans’ court may on his own petition allow such attorney such sums as it may deem reasonable as an expense in the administration account of the executor or of the administrator during whose incumbency such services were rendered.” The allowance of a counsel fee by an orphans’ court requires the exercise of judgment and discretion.

Ordinarily we will not disturb such an award unless it is shown that there has been an abuse of that discretion. Dessel v. Goldman, 231 Md. 428 (1963); Kenny v. McAllister, 198 Md. 521 (1951). The question before us then is whether this award is so unreasonable as to amount to an abuse of that discretion. We see nothing new here and we think the law is clear.

In American Jewish Joint Distribution Comm. v. Eisenberg, 194 Md. 193, 200 (1949), we said: “Canon 12 of the Canons of Professional Ethics 1 which were adopted by the American Bar Association in 1908 and by the Maryland State Bar Association on June 25, 1948, provides: ‘In fixing fees, lawyers should avoid charges which overestimate their advice and services, as well as those which undervalue them. * * * In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the ac ⁵⁸⁷ ceptance of employment in the particular case will preclude the lawyer’s appearance for others in cases likely to arise out of the transaction, and