Miller v. Gehr

Boyd J., delivered the opinion of the Court. There are four appeals in this record, one of which was from an order of the Orphans’ Court of Carroll County, passed on the ex-parte application of the executors of John H. Miller, authorizing and directing them to pay a fee to the attorneys who represented the executors in a contest over the last will and testament of said Miller, which resulted in a verdict for the caveators, and the others were from subsequent orders of that Court passed in reference to petitions filed by the appellants. The first was passed on the 26th of March, 1900, authorizing and directing the executors to pay to Messrs. Reifsnider 8c Grimes, and William H. Thomas, attorneys, a fee of $1,500.00 for services in the trial of the caveat.

The following day the administrators and the next of kin of said Miller filed a petition alleging that the fee was excessive, oppressive and unreasonable, objecting to another fee allowed Messrs. Reifsnider, 8c Reifsnider on February 12th, 1900, and praying that the order be rescinded and that the petitioners “ may have their objections to said allowance inquired into and the grounds for said allowances examined, to the end that justice and right may be obtained. ” The Court on April 2nd, passed an order setting down the petition for hearing, with leave to the parties “to offer proof at said hearing,” and the appellants then filed another petition in which they asked that the original one be taken as part of that and prayed that issues be framed and transmitted to a Court of law. On the 6th of April the Court passed an order dismissing both petitions. An appeal was then entered from the original ⁷¹⁴ order allowing the fee, the one of April 2nd and the one of April 6th, dismissing the two petitions.

A motion to dismiss all the appeals was made because the record was not transmitted to this Court within thirty days after the appeal was prayed, but an affidavit of the Register of Wills was filed, in which it is stated that the delay and omission to transmit the record within the time prescribed by law, was occasioned by his inability, due to press of other work in his office. No counter affidavits have been filed and under section 38 of Art. 5 of the Code this motion must be overruled. A motion was also made to dismiss the appeal from the first order mentioned because there is no evidence in the record to enable the Court to pass upon the questions involved therein. It was conceded at the argument that the attorneys for the executors were entitled to some compensation, but the allowance of it on an ex-parte application, without giving the appellants an opportunity to be heard, is objected to.

The record does not distinctly state whether the will was admitted to probate and letters testamentary granted before the caveat was filed, but from what we gathered at the argument, we understand that such was the case and, in the absence of something in the record to the contrary, must assume it to be so. Executors are entitled to expenses, not personal, necessarily incurred by them in the discharge of their duties and it has been expressly decided in this State that, after the probate of a will and grant of letters testamentary, it is their duty to appear to and defend a caveat to the will under which they are acting, and make all necessary preparations for trial, including, of course, employment of counsel. Compton v. Barnes, 4 Gill, 55 ; Townshend v. Brooke, 9 Gill, 90; Glass v. Ramsey, ibid. 456; Gordon v. Perkins, 63 Md. 589. In Townshend v. Brooke , our predecessors said that authority was expressly given the Orphans’ Court to pass an order for such compensation under the statute, which is still in force and now a part of section 5 of Art. 93 of the Code. ⁷¹⁵ With the order of March 26th, 1900, there was filed a certificate of nine members of the Carroll County Bar, certifying that the sum of $1,500.00 would be a reasonable and proper fee to be allowed.

It being within the power and jurisdiction of the Orphans’ Court to allow a fee for such services, its order was not void, notwithstanding it was passed without notice to the appellants. In the settlement of estates the Orphans’ Courts are frequently called upon to act on claims, etc., which may affect the interests of the distributees and the amounts they will ultimately receive, without notice to them or to the personal representatives of the deceased. If notice must be given in all cases, estates would oftentimes be subjected to heavy and useless costs in bringing the parties before the Court, and when the allowance of counsel fees is within their jurisdiction an order making such an allowance cannot be said to be void, merely because notice of their proposed action had not been given to those interested. It is the constant practice of Courts of Equity to pass such orders without notice, although the correct practice is to pass them subject to exceptions, so that they can be inquired into before the auditor, if desired.

When it is done in the Orphans’ Court without notice the proper parties can still object to the allowance in the account of the executor or administrator, if the objection be made in due time, which may depend upon circumstances, but in the absence of fraud, or some misconduct, should usually be limited to the time of the passage of the account and payment of the money. When the Court has the power to make such an allowance the amount must, in a great measure, be left to its discretion, but as the fee must be a reasonable one, (taking