Munroe v. Whitaker

Briscoe, J., delivered the opinion of the Court. The single question presented in this case, is whether the Court below committed an error in refusing to allow a counsel fee of ten thousand dollars to the appellants out of the common fund of the trust estate of George P. Whitaker, late of Cecil County, deceased, upon the facts disclosed by the record now before us. The question is raised by exceptions to the report and account of the auditor filed on the 10th day of May, 1912, in the case of Updegraff et al. v. Whitaker et al., in the Circuit Court for Cecil County, distributing the trust estate among the descendants of the devisees and legatees named in the will of Mr. Whitaker. On the 18th of January, 1912, the appellants filed a petition in the case asking the Court, “to allow them a reasonable compensation for their services as solicitors and attorneys in the case to be paid out of the portion of the estate to be dis^ tributed under the order of the Court.” The petition sets out the grounds upon which they rely' for compensation, and was accompanied by a recommendation of certain members of the bar of the State named on. the certificate, that' the fee was a moderate compensation for their ³⁹⁸ services, and was a proper one to be allowed, and to be paid out of tbe estate.

Hpon tbis petition and recommendation,-tbe Circuit Court for Cecil County, on tbe 5tb day of March, 1912, directed tbe fee to be allowed by tbe auditor in tbe account, thereafter to be stated, subject to all proper exceptions and directed a copy of tbe petition and order to be served upon eacb of tbe parties in interest or tbeir attorneys before tbe audit was filed. On tbe 18tb of September, 1912, tbe report and account of tbe auditor as stated was finally ratified and confirmed, except as to tbe counsel fees allowed in tbe audit, and they were reserved for tbe future action of tbe Court. Subsequently, on tbe 3rd of March, 1913, two agreements were filed, by the attorneys representing tbe appellants and tbe appellees, wherein it was agreed, that tbe formal taking of testimony on tbe petition, and tbe exceptions to tbe audit, should be waived, and tbe testimony set out in tbe agreements should be substituted therefor, and used at the bearing, in lieu of tbe usual taking of testimony. On tbe llth of March, 1913, tbe Court below upon bearing and after arguments, sustained tbe exceptions to tbe allowance by tbe auditor of tbe fee in question and directed tbe fund to be distributed to the parties entitled.

From tbis decree, tbis appeal has been taken. Tbe material averments of tbe petition are substantially as follows: First — That upon employment by certain of tbe parties in interest tbe petitioners instituted proceedings in tbe Circuit Court for Cecil County by a proper bill in equity to require an accounting by tbe executor and trustee, Joseph Coudon, and to require a bond of tbe executor and trustee, wbicb bond had never been given, and to require a distribution of tbe large amount of money wbicb bad accumulated in tbe bands of tbe executor and trustee undistributed, as required by tbe will, over and above tbe amounts set aside under the terms ³⁹⁹ of the will for the maintenance of the widow of the testator during her life or widowhood. Second- — That the cause was prosecuted successfully in the Circuit Court for Cecil County, in Equity, and also in the Court of Appeals of Maryland, the decree of the lower Court ordering the relief prayed for in the bill of complaint having been affirmed by the latter Court. Third — That the result of the efforts of the petitioners has inured to the benefit of all parties interested in the estate, by securing an order requiring the surviving executor and trustee, Coudon, to give bond for the faithful administration of his trust, and by securing an immediate distribution of the estate of George P. Whitaker, in accordance with the provisions of his will, the amount now in hand for distribution amounting to about $325,000.

Eourth — -That the whole estate for which the executor, Coudon, as trustee is responsible, and for which no bond whatever had heretofore been given, amounted to $370,-978.28, as shown by the 17th and last account filed by the executor, Coudon, December 13th, 1911, as of January 1st, 1911; so that the actual assets now in the hands of the executor and trustee amount to about the sum of four hundred thousand dollars ($400,000.00). Eifth — That all the parties who are to participate in the distribution ordered by the Court in this case are equally beneficiaries of the services rendered by the petitioners. The appellees, who were the defendants in the suit and who represented four-fifths of the estate, resisted the payment of the fee, and assign the following reasons in their brief filed in this Court, against its allowance: (1) Appellants were employed by the plaintiffs and should look to them for their compensation. (2) There was no contract expressed or implied between the defendants and the appellants, and in the absence of such contract no additional fee can be allowed out of the estate. ⁴⁰⁰ (3) The defendants did not employ the appellants, nor countenance their employment in any way.

(4) The defendants were opposed and hostile to the litigation and the objects sought to be attained by it, as being against their interests and contrary to their wishes and desires in the matter. (5) That the defendants were not benefited in any particular by the results accomplished in the litigation. (6) That the defendants vigorously contested the whole proceeding, and it would be unjust and inequitable to require them to pay for services which they did not want nor acquiesce in, services that resulted in a litigation which they strenuously opposed, and the result of which was not beneficial or agreeable to them. (7) There was paid to said appellants in accordance with their contract a fee that was full and ample compensation for all of the services performed.

The evidence upon the part of the appellants as set out in the agreement No. 2 filed in the case, is to the effect: (1) That they were employed in this case solely by the plaintiffs. (2) That they had an agreement with their clients to prosecute their suit for them for five per cent. (5%) of whatever amount was paid to their clients under any distribution brought about through their efforts in the suit. (3) That on September 23rd, 1912, they received from their clients the sum of $3,821.89, being the amount due them under the agreement out of the sums paid to the plaintiffs on that date.

(4) That they did not agree that this amount should be .their sole compensation in the cause, but on the contrary it was their expectation to ask for a fee from the whole estate, as had been done; provided, their clients were not in any way affected thereby. (5) That at the time they asked for the fee of $10,000.00 they agreed with their clients that of whatever fee was al ⁴⁰¹ lowed them under their petition for same the share thereof which would otherwise be awarded to their clients, if no such fee was paid out of the whole estate, would be returned to their clients. '(6) That at the time of the payment of $3 821,89 a formal assignment of the portion of the fee (being 1/5 thereof) was made to the plaintiffs, so that in any event, only $8,000.00 of the fee can come into the hands of the appellants. The evidence upon the part of the appellees as incorporated in agreement Ho. 1, filed in the case, is to the following effect : (1) That each of the defendants has a legal or equitable interest in a considerable number of the shares of the capital stock of the Whitaker Iron Company and the WhitakerGlessner Company, and each of their male defendants is a director in and the same are officers in either one or both of the companies; the companies being those mentioned in the bill of complaint. (2) That each of the defendants has not been benefited by the decree passed in this cause and the distribution made thereunder.

(3) That each was familiar with the facts in connection with the estate, the investment of its funds and the condition of its affairs, and was perfectly willing to allow the same to remain as they were until the death of Mary L. Whitaker, the life tenant, and that each of the defendants did not want any distribution of any portion of the estate prior to her death, and was at the time of the institution of this suit and ever since opposed to the distribution or partial distribution being made. • (4) That upon the institution of this suit- all of the defendants joined in retaining George A. Blake and Frederick T. Haines as their solicitors to represent and appear for them in this litigation and to oppose vigorously the prosecution of the suit by the plaintiffs and to do everything that could ⁴⁰² legally and properly be done to defeat a distribution as sought in the bill filed in the cause. (5) That at the time the suit was begun and ever since, the defendants desired the residuary estate of George P. Whitaker, deceased, to remain undistributed until