Martin v. Staubs

Briscoe, J., delivered the opinion of the Court. The. two appeals in these cases, Píos. 75 and 98, October Term, 1922, were argued together, and they will be disposed of by us in one opinion. The parties are the same in each case, and the appeals are from orders of the Orphans’ Court of Washington County, passed in the matter of the administration of the estate of Charlotte Ann 'Staubs, late of Washington County, deceased. The record in "No. 98 includes the matters and proceedings set out in !N"o. 75, so> our decision will rest upon the record in ifo. 98, and will co ver the orders on each appeal.

The controlling faops on the appeals are these: Charlotte A. Staubs died intestate in Washington County, on the 18th of May, 1921, leaving surviving her five daughters, four of whom are the appellants in the ease, and two. sons, the appellees in the case^ and also the administrators of her estate. She left personal property of the value of $171, and real estate worth about $2,850. The questions presented on the first appeal arise upon a petition for an allowance of counsel fee, in a replevin suit, on appeal from a justice of the peace to the Circuit Court of Washington County, for a cow, alleged to be the.property of the deceased, but in the possession of one of the daughters at the death of the intestate, and claimed by the daughter to be. her property. On June 6th, 1922, the orphans’ court passed an order, allowing the counsel for the administrators a- fee of $75 for services rendered in the trial of the replevin suit on appeal ²⁷⁰ from a -justice of the peace to the Circuit Court for Washington County.

On June 9th, 19-22, the orphans’ court passed an additional order, directing that the items of costs, incurred in the cow suit, amounting to the sum of $9-8.25, he p-aid out of the estate of the deceased in the hands of the administrators. - On the 13th of June, 1922, the first and final account of Sfcmuel H. Staubs and Howard H. Stanb®, administrators of Charlotte Ann Sftaubs, was presented to the orphans’ court and approved. This account was a final settlement of the estate1, including the contested items, and showed a balance dúé'the administrators of $93.54, on final settlement of the estate. On July 3rd, 1922, an appeal was taken from each order, and these appeals are contained in the record in both cases. On July 8th, 1922, the appellants filed a petition asking the'court to .set aside its previous orders of June 6th and June 9th, allowing counsel fee and the costs in the replevin suit; 'and to re-open and re-state- the administrator’s account, without allowing the sums of money stated in these orders.

The matter of the petition was answered by the administrators and, after hearing, the court held that no error was committed in the orders as passed, and refused to grant the prayer of the petition. On the 11th of August, 1922, an order was passed by the court dismissing the petitions of July 8th and July 18th, 1922, and requiring the costs- of the proceedings to be paid by the petitioners. The appeal from this order isi set out in record No-. 98, and is dated the 9th of August, 1922. We will consider the questions presented by the orders appealed from, in their regular order: First, was the allowance of seventy-five dollars, as counsel fee in the trial of the case in the O'ircuit Oourt of Washington County a proper charge for services rendered the estate, under -the facts of this case?

In Bowie v. Ghiselin, 30 Md. 553 , this Oourt said, that it is the duty of an executor to pay the debts of the deceased ²⁷¹ without, delay, unless he has good cause to contest them; he enters into such contest at his own peril and becomes personally liable for the costs. By the Code, art. 96, sec. 105, the court of law or equity having* jurisdiction over the case is authorized to award costs against such executor, which he. is not entitled to have allowed to him in his administration accounts without the certificate of such court that there were probable grounds for defending tbe action. And to tbe same effect are tbe eases of Dalrymple v. Gamble, 68 Md. 156 , and Beachley v. Estate of Bollinger, 119 Md. 151 . In the present case, the inventory of the personal estate amounted to about $170, and the property sought to he recovered by the administrators was appraised at only $40. .

It is clear, then, upo-n the state of facts disclosed by the record, that the allowance of a counsel fee of $75 in this case was unreasonable and improper, and the order of the orphans’ court, directing