Piper Rudnick LLP v. Hartz

RAKER, J. This is the latest chapter in the dispute between the late Sigmund Stanley Hartz’s beneficiaries and his personal representative. Previously, the personal representative successfully defended against the beneficiaries’ attempt to remove and surcharge him. In this case, we must decide, pursuant to Md.Code (1974, 2001 Repl.Vol., 2004 Cum.Supp.), § 7-603 of the Estates and Trusts Article, 1 whether the personal representative is entitled to pay counsel fees incurred in that defense from the corpus of the estate. We shall answer this question affirmatively and reverse.

I. Appellants Brian Goldman, personal representative of the estate of Sigmund Stanley Hartz, and Piper Rudnick LLP, 2 counsel to Goldman, appeal the denial of their petition for attorney’s fees by the Orphans’ Court for Frederick County. Appellees Carol Hartz, Barbara Hartz Habermann, and Benjamin Hartz (“the beneficiaries”) are Mr. Hartz’s children and beneficiaries of his will. Sigmund Stanley Hartz died on April 22, 1996, leaving an estate of approximately $4,456,783. Hartz’s will named as beneficiaries his children and his wife, Natalie Hartz. 3 The major assets of the estate were: (1) a one-third interest in the common stock of Hartz & Company, Inc. (“Company”), amounting to a one-half interest in the voting stock; and (2) a ²⁰⁸ one-half interest in the Hughes Ford General Partnership (“Partnership”).

Hartz’s will named Brian Goldman as his personal representative. Goldman served as Hartz’s personal attorney for twenty-five years. In addition, Goldman served as counsel to the Company, Partnership, and Abraham Cohen, Hartz’s business partner. In naming Goldman as his personal representative, Hartz was aware that Cohen also had named Goldman as his personal representative.

Hartz expressly waived any potential conflicts of interest that could arise from Goldman’s representation of his estate, Cohen’s estate, the Company, and the Partnership. The will granted to Goldman, as fiduciary, the power to appoint attorneys without court approval. Section 7.1 of the will provided as follows: “I hereby grant to my Fiduciaries ... the following powers, without the need to apply for or obtain any order, ratification or approval of any court, for the exercise thereof, in addition to those conferred by common law, statute, or rule of court: ... To appoint agents to act on behalf of my Fiduciaries, including, without limitation, attorneys, accountants and investment counsel, and to delegate discretionary power to such agents.” Following Hartz’s death, Goldman functioned as personal representative of Hartz’s estate.

Goldman regularly wrote to the beneficiaries about the estate’s assets and liabilities. Between Hartz’s death and July 1999, Goldman filed six administration accounts, three inventories, and a number of petitions for attorney’s fees in the Orphans’ Court for Frederick County. The beneficiaries did not file exceptions to any of these documents. By August 1999, the relationship between Goldman and the beneficiaries had become acrimonious.

The beneficiaries were critical of Goldman’s role in the estate’s efforts to enforce a Stockholder’s Agreement, which stipulated that the Company would repurchase Hartz’s stock. After a dispute developed between the Company and Hartz’s estate, one of the Company’s attorneys expressed his concern over Goldman’s conflict ²⁰⁹ of interest. In response, in June 1996, Goldman notified the beneficiaries that he would not represent the estate in the stock repurchase negotiations. The beneficiaries did not object, and they requested that the estate retain Alan Sachs to represent the estate in the negotiations.

Over the next three years, Sachs negotiated interim and final stock redemption agreements with the Company. The beneficiaries’ recriminations against Goldman arose from his efforts as the Company and Cohen’s attorney to transfer ownership of Cohen’s life insurance policy from the Company to an insurance trust. This transfer was necessary to avoid adverse tax consequences. Since 1991, Hartz and Cohen had been aware that the survivor would have to restructure his life insurance policy to avoid these consequences.

Goldman executed the insurance trust on April 12, 1999, one month after Sachs executed the final stock redemption agreement. Sachs and the beneficiaries accused Goldman of harming the estate by not informing Sachs of the plan to create the trust and the priority of paying beneficiaries under the trust’s terms. According to Sachs and the Hartz beneficiaries, the trust harmed Hartz’s estate by, among other things, placing the estate at the bottom of the distribution list for Cohen’s life insurance. Goldman asserted that he was precluded by attorney-client privilege from informing Sachs and the beneficiaries of his plans.

The other source of acrimony was the estate’s Partnership assets. Goldman urged Cohen to exercise his option to purchase the estate’s Partnership interest. Cohen ultimately defaulted on this option, because he could not negotiate a suitable financing agreement. In addition, Goldman repeatedly pressured the Company to pay rent, back rent, and interest it owed the Hartz estate.

With Goldman’s consent, Sachs negotiated with the Company to pay the back rent. Later, these negotiations expanded to include an offer by the Company to purchase the estate’s interest in the Partnership. On September 23, 1999, Sachs informed Goldman that the beneficiaries did not want Goldman to participate in the negotiations. ²¹⁰ The growing rancor culminated in a showdown before the Orphans’ Court. On November 22, 1999, Goldman filed a seventh administration account and a petition for termination of the estate and discharge from liability.

The beneficiaries filed exceptions to Goldman’s petition, requesting, inter alia, that the court deny the petition to close the estate, remove Goldman as personal representative, appoint Carol Hartz in his stead, and surcharge Goldman and/or his law firm for damages caused by his alleged breach of his fiduciary duty. Specifically, the beneficiaries requested that Goldman and his firm be surcharged the amount of their fees from March 1 to October 31, 1999. In support of their exceptions, the beneficiaries cited concerns involving the Partnership. The Orphans’ Court held a hearing on March 13, 2000 and issued an order on March 15, 2000.

The court ordered Goldman removed as personal representative, disapproved his seventh accounting, and denied his petition for termination of the estate and discharge of liability. At the same time, the court appointed Goldman special administrator and granted his petition for allowance of interim counsel fees. Goldman appealed to the Circuit Court for Frederick County, and the beneficiaries cross-appealed from the denial of the surcharge petition. The Circuit Court found that Hartz was aware when he named Goldman personal representative that there were possible conflicts of interest.

The court stated, however, that the level of conflicts eventually “rose to a level that Hartz could not have reasonably contemplated or foreseen” and “rose to a point where Goldman could not function effectively as Personal Representative for the Estate.” Accordingly, the court ordered Goldman removed as personal representative. The Circuit Court held a hearing to consider the beneficiaries’ request that Goldman and his firm be surcharged. The court denied the surcharge request, because: (1) the Orphans’ Court had approved the fee petitions, indicating that it had found that Goldman’s actions were “for the benefit of the estate,” and (2) Goldman’s conflict of interest did not consti ²¹¹ tute bad faith or gross negligence. The court removed Goldman as special administrator and named Carol Hartz as personal representative of the estate.

Goldman appealed his removal to the Court of Special Appeals, and the beneficiaries cross-appealed, challenging the denial of the surcharge request. On July 28, 2003, in an unreported opinion (“Goldman I ”), the Court of Special Appeals held that removal of Goldman “was neither necessary nor appropriate because the record before us indicates that the estate was ready to be closed.” The Court of Special Appeals affirmed the denial of the surcharge request, agreeing with the Circuit Court that Goldman had not acted in bad faith or gross negligence. The court based this holding on two factors. First, it stated, “We discern no facts recounted, and no findings made, that remotely suggest bad faith on the part of Goldman.” Second, the court concluded that the beneficiaries failed “to show any measurable damages caused either by Goldman’s personal profit from the conflicts of interest or monetary loss to the estate.” The beneficiaries appealed, and we denied their petition for a Writ of Certiorari on December 16, 2003. 378 Md. 615 , 837 A.2d 926 (2003).

In August 1999, faced with the beneficiaries’ hostility, Goldman retained Piper Rudnick. On November 30, 2001, Piper Rudnick filed a petition for its fees in the Orphans’ Court pursuant to § 7-602. Goldman signed the petition and, paraphrasing § 7-603, asserted that he was “entitled to receive his necessary expenses and disbursements from the Estate, including attorneys fees.” This fee petition covered Piper Rudnick’s work from August 1999 until June 2001, when the Circuit Court issued its opinion. 4 The fees amounted to ²¹² $589,441.28, based on attorney and paralegal fees of $568,914.00 and expenses of $20,527.28. According to Piper Rudnick, “[o]ver 95%” of the fees were incurred in the firm’s “preparation for and trial of the case” in the Circuit Court.

Carol Hartz opposed the fee petition. 5 The Orphans’ Court held a hearing and denied the fee petition. The court stated as follows: “The check and balance of the Orphans’ Court is that we’re in total agreement that any person in any matter may hire any attorney. Check and balance has always been in the Orphans’ Court since time immemorial, is that the court decides how much that attorney that has been hired gets paid. It is a fair check and balance. “The court, in reviewing this matter, also noted that there are no prior attorney fees petitions filed by [Piper Rudnick and Goldman] prior to the one before the court at this point. ²¹³ “Now, in reviewing the matters, defense argued before the court as to whether or not something is — has a right to appeal, the court does not question anyone’s right to appeal.

And it was argued, both sides, very well, that one — and the court has been faced with the many times; people will not even want to serve as personal representative if, in fact, they are (inaudible) by hostile legatees or hostile family members who want them removed just for the mere pleasure of removing them. “Also argued well by [Piper Rudnick and Goldman] is that a hostile personal representative is certainly a breach — or hurt the estate by expenditures of money, thinking that they are right. And I think each case is, of course, obviously, judged on its merit. In that respect, the court has decided that the position for allowances for attorney fees in this matter are hereby denied.” Piper Rudnick and Goldman appealed the Orphans’ Court’s denial of Piper Rudnick’s fees directly to the Court of Special Appeals, pursuant to Md.Code (1973, 2002 Repl.Vol., 2004 Cum.Supp.), § 12-501 (a) of the Courts and Judicial Proceedings Article (permitting a party to appeal to the Court of Special Appeals from a final judgment by an orphans’ court). On September 30, 2003, the Court of Special Appeals, in an unreported opinion (“Goldman II ”), held that in order for an orphans’ court to decide whether to approve fees incurred by the personal representative in prosecuting or defending proceedings, the orphans’ court must first determine whether the litigation was “for the protection or benefit of the estate.” Next, the orphans’ court must determine whether the prosecution or defense was “in good faith and with just cause.” Concluding that the Orphans’ Court had not considered whether Goldman’s defense of the beneficiaries’ attempts to remove him met the first prong of this test, the Court of Special Appeals vacated the order and remanded the matter.

On January 7, 2004, the Court of Special Appeals denied Piper Rudnick and Goldman’s Motion for Reconsideration and Reargument. The court, in relevant part, ordered as follows: ²¹⁴ “ORDERED, in keeping with the opinion of this Court, that the Orphans’ Court for Frederick County shall convene a hearing at which counsel for the parties may be heard and present evidence on the question of whether the litigation expenses and fees at issue ‘were for the protection or benefit of the estate’ of Sigmund Hartz. It is further “ORDERED that when the Orphans’ Court has decided this issue, either party aggrieved by that order may seek appropriate relief in conformity with applicable Maryland rules of civil procedure.” The Orphans’ Court held a hearing on March 24, 2004. At the hearing, Goldman testified that the “benefit to the estate” was his adherence to Hartz’s testamentary intent for Goldman to serve as his personal representative.

The court responded as follows: “Yeah, but your arguments don’t hold because of those— well, we’re not going to get into that because the question I asked, you have answered. And I think you’re correct in saying that the wishes of the testator, I think you’re 100 percent correct. And I think, just as a comment from the bench, that you have a responsibility, a fiduciary role to protect the assets so that distribution and awards can be made, I think that you have that responsibility as well.” The Orphans’ Court denied the petition of Piper Rudnick, stating that “this Court has determined that the litigation expenses incurred were not for the protection or benefit of the Estate.” Piper Rudnick and Goldman noted a timely appeal to the Court of Special Appeals. Before that court considered the issues, we granted certiorari on our own initiative. 383 Md. 256 , 858 A.2d 1017 (2004).

II

The Court of Special Appeals held in Goldman II that § 7-603 applies only when the personal representative’s defense or prosecution of a proceeding is “for the protection or benefit of ²¹⁵ the estate.” 6 On remand, the Orphans’ Court applied the test set out by the Court of Special Appeal and did not authorize Goldman to pay Piper Rudnick’s fees from the estate. Before this Court, Piper Rudnick and Goldman make two arguments. First, they maintain that there is no requirement that the defense be “for the protection or benefit of the estate.” Instead, according to Piper Rudnick and Goldman, § 7-603 entitles a personal representative to reimbursement as long as the personal representative defends a proceeding “in good faith and with just cause.” In addition, Piper Rudnick and Goldman advocate a per se rule that a personal representative’s successful defense of a removal and surcharge petition meets the requirements of § 7-603. In the alternative, Piper Rudnick and Goldman argue that Goldman’s defense benefitted the estate.

They advocate a similar per se rule that legal fees incurred in a successful defense against an attempted removal of a fiduciary when the personal representative was not found to have done anything wrong are incurred for the benefit of the estate. The benefit in such situations is that the personal representative has fulfilled the testator’s intent to have him or her serve as the personal representative. According to Piper Rudnick and Goldman, a contrary result would encourage many personal representatives to resign whenever a beneficiary files a petition to remove, because personal representatives would not risk financial responsibility for defending the suit. The beneficiaries argue that the Orphans’ Court did not abuse its discretion in denying Piper Rudnick’s fee and that the court should be affirmed.

They assert that the Orphans’ ²¹⁶ Court has the authority to award attorney fees that are “fair and reasonable in light of all the circumstances to be considered,” § 7-602(b), including fees incurred by the personal representative who prosecutes or defends a proceeding “in good faith and with just cause,” § 7-603, provided that the personal representative engaged in such action “for the protection or benefit of the estate.” § 7-401(y). The beneficiaries reject Piper Rudnick and Goldman’s per se benefit to the estate rule and argue that an orphans’ court’s decision about whether to allow counsel fees is discretionary. They contend that the Orphans’ Court did not abuse its discretion in holding that Goldman’s decision to appeal his removal did not benefit the estate. To support their contention, the beneficiaries makes two arguments.

First, Goldman’s success in appealing his removal does not exonerate him from wrongdoing. Goldman had conflicts of interest that the testator could not have contemplated. Second, Goldman’s decisions resulted in the large attorney’s fees. Specifically, the beneficiaries fault Goldman for: (1) not seeking the Orphans’ Court’s approval prior to hiring Piper Rudnick; (2) not resigning, when he had noted that terminating the estate was in the estate’s best interest and when he offered to resign in return for a release from the beneficiaries’ claims against him; and (3) appealing to the Circuit Court for an extensive de novo trial, rather than appealing directly to the Court of Special Appeals.

An orphans’ court is a tribunal of special limited jurisdiction and can exercise only the authority and power expressly provided to it by law. See § 2—102(a); Radc liff v. Vance, 360 Md. 277, 286 , 757 A.2d 812, 816 (2000); Mudge v. Mudge, 155 Md. 1, 3 , 141 A. 396, 397 (1928). As such, an orphans’ court has the power to direct the allowance of counsel fees out of the estate only when authorized by statute. Clark v. Rolfe, 279 Md. 301, 305 , 368 A.2d 463, 466 (1977); Lusby v. Nethken, 262 Md. 584, 585 , 278 A.2d 552, 553 (1971); Mudge, 155 Md. at 3 , 141 A. at 397 .

An orphans’ court must exercise sound judgment and discretion in determining whether to ²¹⁷ award counsel fees. Wolfe v. Turner, 267 Md. 646, 653 , 299 A.2d 106, 109 (1973); Lusby, 262 Md. at 586 , 278 A.2d at 553 .

III

Two statutes authorize the orphans’ court to allow attorney’s fees from the estate: §§ 7-602 and 7-603. 7 At issue in this case is § 7-603, which provides as follows: “When a personal representative or person nominated as personal representative defends or prosecutes a proceeding in good faith and with just cause, he shall be entitled to receive his necessary expenses and disbursements from the estate regardless of the outcome of the proceeding.” We first consider whether a “for the protection or benefit of the estate” rule is a separate requirement under § 7-603. 8 We conclude that § 7-603 requires only that the personal representative acted “in good faith and with just cause.” We hold that Goldman was entitled to receive Piper Rudnick’s fees from Hartz’s estate. We first address Piper Rudnick’s argument that § 7-603 does not contain a “benefit to the estate” requirement. We agree with Piper Rudnick that there is no statutory independent or separate requirement contained within § 7-603 that the personal representative benefit the estate. Our conclusion ²¹⁸ is based upon the plain language of § 7-603, as well as the legislative history of § 7-603 and the case law of this Court.

A. The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005); Collins v. State, 383 Md. 684, 688 , 861 A.2d 727, 730 (2004). In ascertaining legislative intent, we first examine the plain language of the statute. Phillips, 384 Md. at 591 , 865 A.2d at 594 .

We do not examine the plain language in isolation. Rather, we consider the particular and broad objectives of the legislation and the overall purpose of the statutory scheme. Id. If the plain language of the statute is unambiguous and consistent with the statute’s apparent purpose, we give effect to the statute as it is written.

Id. We find that the language of § 7-603 is plain and unambiguous and does not include an independent “benefit to the estate” requirement. We hold that in order for the personal representative to receive attorney’s fees, the statute requires only that an action by the personal representative be in good faith and with just cause. The statute contains only two limitations: (1) the defense or prosecution must be “in good faith and with just cause,” and (2) the expenses and disbursements must be “necessary.” See Fields v. Mersack, 83 Md.App. 649, 654 , 577 A.2d 376, 379 (1990) (noting that “The plain language of the statute [§ 7-603] makes clear ... that a personal representative may not receive ‘necessary expenses and disbursements from the estate’ unless he or she ‘defends or prosecutes a proceeding in good faith and with just cause’ ”).

The Court of Special Appeals, in concluding that § 7-603 requires a “benefit to the estate,” in effect added language to § 7-603. We have held that the Legislature’s intent in enacting § 7-603 was to state broadly that a personal representative’s defense of a will was to be at the expense of the estate. See Webster v. Larmore, 268 Md. 153, 170-71 , 299 A.2d 814 , ²¹⁹ 823 (1973) (stating that the statutory progenitor of § 7-603 “made it dear that the defense of a will whether before or after probate was to be at the expense of the estate” and that it is “quite apparent, too, that the Legislative intent, as expressed in § 7-603, was that a defense of a will by either a personal representative ... or by a person nominated as personal representative ... should similarly be at the expense of the estate”). Further, a review of § 7-401 makes dear that its “for the protection or benefit of the estate” requirement should not be read into § 7-603.

Section 7-401(a)(1) empowers a personal representative, when authorized by a statute or the will, to act without approval by the orphans’ court. Section 7-401(a)(2) provides that a personal representative not otherwise empowered by the will, common-law, or statute, may exercise the powers listed in the remainder of the section. 9 Section 7-401(y) is one of these powers applicable when there is no provision to the contrary in the will, common-law, or statutes. 10 The section’s limited application makes it an unfit source for a universal limitation to the scope of § 7-603. 11 ²²⁰ B. Our conclusion that § 7-603 does not contain an independent “benefit to the estate” requirement is supported by the legislative history and by this Court’s case law. We have reviewed the statutory development of § 7-603, as well as § 7-602. We conclude that it is § 7-602, not § 7-603, which derived from the statutes that have served as the bases for a “benefit to the estate” requirement.

Prior to 1937, the Maryland Code did not expressly authorize an orphans’ court to allow counsel fees from the estate. See American Jewish Joint Distribution Committee v. Eisenberg, 194 Md. 193, 199 , 70 A.2d 40, 42 (1949). Instead, the Code, in a provision detailing disbursements to be included in the administration account, authorized allowance of an administrator’s “costs and extraordinary expenses (not personal) which the Court may think proper to allow, laid out in the recovery or security of any part of the estate.” Md.Code (1924, 1935 Cum.Supp.), Art. 93 § 5. This provision dated from ²²¹ the original 1798 Maryland codification of testamentary law, with only minor stylistic changes. 1798 Md. Laws, Chap 101, Subchap. 10, § 2.

See generally Edgar H. Gans, Sources of Maryland Testamentary Law, in 18 Transactions: Maryland State Bar Association 193 (1913) (discussing the history of the 1798 codification). We construed this section narrowly, holding that an attorney’s fees could be allowed only when the attorney worked to augment the estate or protect it from spoliation. See Gradman v. Brown, 183 Md. 634, 638 , 39 A.2d 808, 810-11 (1944) (citing Baltimore v. Link, 174 Md. 111 , 114—17, 197 A. 801, 803-04 (1938)). Article 93 § 5 was amended in 1939 to expand its scope.

See id. As amended, the section provided, in relevant part, as follows, “Second, his allowance for costs and extraordinary expenses (not personal) which the Court may think proper to allow, laid out in the administration or distribution of the estate or in the recovery or security of any part thereof, costs to include reasonable fees for legal services rendered upon any matter in connection with the administration or distribution of the estate in respect to which the Court may believe legal services proper.... ” 1939 Md. Laws, Chap. 511. In 1937, the General Assembly enacted Article 93 § 7.1937 Md. Laws, Chap. 441. 12 This new section, for the first time, authorized an attorney to petition an orphans’ court and the orphans’ court to allow reasonable expenses to that attorney for services rendered to the estate. Id.

The Legislature expanded the section in 1959, adding “or to an executor or administrator of an estate” to the first line of what had become Article 93 § 10. 1959 Md. Laws, Chap. 291. ²²² In 1966, the General Assembly first addressed a the expenses of a personal representative in defending or prosecuting proceedings. The General Assembly enacted 1966 Md. Laws, Chap. 200, which created Article 93 § 49A. Article 93 § 49A provided as follows: “When any person designated as an executor in a will, or the administrator with the will annexed, defends the will or prosecutes any proceedings in good faith and with just cause for the purpose of having the will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees in such proceedings.” 13 The statutes took their current form in 1969. Pursuant to 1965 Md. Laws, Joint Resolution No. 23, Governor J. Millard Tawes appointed the Governor’s Commission to Review and Revise the Testamentary Law of Maryland [hereinafter “Henderson Commission”]. 14 On December 5, 1968, the Henderson Commission issued its Second Report, recommending legislation that would replace much of Article 93 of the Maryland Code.

See Second Report of Governor’s Commission to Review and Revise the Testamentary Law of Maryland, Article 93 Decedents’ Estates (1968) [hereinafter “Henderson Commission Report”]. See generally Shale D. Stiller and Roger D. Redden, Statutory Reform in the Administration of Estates of Maryland Decedents, Minors and Incompetents, 29 Md. L.Rev. 85 (1969) (detailing the work of the Henderson Commission). In 1969, pursuant to the Henderson Commission’s recommendations, the General Assembly repealed most of Article 93, moved the remainder to a new Article 93A, and enacted a replacement Article 93. See 1969 Md. Laws, Chap. 3, § 1. ²²³ Five years later, the General Assembly repealed Article 93 and reenacted it as the Estates and Trust Article. 1974 Md. Laws, Chap. 11, § 2.

Sections 7-602 and 7-603 of the Estates and Trust Article authorize the award of attorney’s fees from the estate. Section 7-602 generally entitles an attorney to reasonable attorney fees and authorizes the orphans’ court, upon an attorney’s petition, to award attorney fees from the estate. 15 Section 7-603 addresses recovery of expenses and disbursements of a personal representative or one nominated as a personal representative and specifically covers a personal representative’s expenses in defending or prosecuting a proceeding. Sections 7-602 and 7-603 are products of the Henderson Commission Report. Both sections are identical to the provisions recommended by the Henderson Commission, except for one stylistic change to § 7-602.

Compare Henderson Commission Report at 119-20 with 1969 Md. Laws, Chap. 3, § 1. The sections were reenacted as §§ 7-602 and 7-603 of the Estates and Trust Articles with only stylistic and linguistic changes. See Revisor’s Notes to Md.Code (1974), §§ 7-602 and 7-603 of the Estates and Trust Article. The Henderson Commission drafted §§ 7-602 and 7-603 based upon prior statutes.

The Henderson Commission’s Comment to § 7-602 states that the “limited statutory law on this subject is contained in § 10(Md.). The Commission has ²²⁴ expanded the procedure, and the reasons, for granting compensation in the form of a counsel fee.” Henderson Commission Report at 119. Article 93 § 49A is “the statutory progenitor of § 7-603.” Webster v. Larmore, 268 Md. 153, 170 , 299 A.2d 814, 823 (1973). Additionally, as discussed supra, § 7-603 is nearly identical to Unif.

Probate Code § 3-720 (amended 1993). Over the past century, this Court has articulated a “benefit to the estate” rule in determining whether an orphans’ court could allow counsel fees from an estate, 16 although our past opinions do not explain the source of applying such a rule in this context. Indeed, some of this Court’s early opinions articulated a “benefit to the estate” rule without reference to a statutory provision. See, e.g., Knapp v. Knapp, 151 Md. 126, 130 , 134 A. 24, 25 (1926) (holding, without citation to any statute, that “The rule in such cases may be stated generally to be that parties intrusted with the administration of an estate may employ counsel to defend any action brought against them, the decision of which might adversely affect the estate, or may employ counsel to institute proceedings for the benefit of the estate, provided there was reasonable ground for instituting or defending the proceedings”).

A review of this Court’s decisions prior to 1939 indicates that our predecessors’ use of “benefit to the estate” was rooted deeply in the requirement in Article 93 § 5 that the attorney’s service was “in the recovery or security of any part of the estate.” Indeed, the term “benefit to the estate” appears to have been an explication of “in the recovery or security of any part of the estate.” For example, in Mudge v. Mudge, 155 Md. 1 , 141 A. 396 (1928), we held as follows: “Whether an estate should be charged with counsel fees for services rendered in litigation of this general character must ²²⁵ be determined largely from the circumstances of each particular case, having due regard for the provisions of the statute ... authorizing the allowance of counsel fees where the services are rendered in the recovery or security of the whole or some part of the estate. To be allowable, the services of the attorney, for whom a fee is asked, should, in some way, be beneficial to the estate, either by the enlargement or the protection of it, and not where the only question to be decided is to whom the estate, or any part of it, shall go and in what proportions.” Id. at 3-4 , 141 A. at 397 ; see also Horton v. Horton, 158 Md. 626, 634 , 149 A. 552, 555 (1930) (stating that “Counsel fees can only be allowed for services rendered for the ‘recovery and security of the estate.’ Ex parte Young, [ 8 Gill 285 (1849)]; Code, art. 93, § 5. And it is not apparent how services rendered in defending letters of administration, which were ultimately revoked because they were prematurely or improvidently issued, can be said to be for the benefit of the estate”); Koenig v. Ward, 104 Md. 564, 566 , 65 A. 345, 346 (1906) (holding that counsel fees were not incurred to benefit the estate and explaining that the purpose of the proceeding was not “to recover the estate, or to protect it from spoliation”). With the 1939 amendment to Article 93 § 5, the statutory basis for “benefit to the estate” appears to have shifted from “in the recovery or security ... of the estate” to “legal services rendered ... to an estate.” The amendment to § 5 expanded the scope of services for which attorney’s fees could be allowed from “in the recovery or security” to “in the administration or distribution of the estate or in the recovery or security of any part thereof.” 1939 Md. Laws, Chap. 511.

With this change, the rooting of benefit to the estate in “recovery or security of any part of an estate” appears to have ceased. Nonetheless, the benefit to the estate rule seems to have migrated to another part of § 5. Along with the 1939 amendment to § 5, the coincident enactment of § 7 appears to have stimulated the rule’s movement. The language of § 7, “legal services rendered ... to an estate,” became the other statutory support for the benefit to the estate rule. ²²⁶ The move from “in the recovery or security ... of the estate” to “legal services rendered ... to an estate” is reflected in this Court’s cases from the 1940’s and 1950’s.

In Gradman v. Brown, 188 Md. 634 , 39 A.2d 808 (1944), a guardian and next friend of the legatees sought attorneys’ fees from the estate to pay for the lawyers he employed to except to the executor’s administration account and to appeal the denial of the exception. We reviewed the amendment to § 5, concluding that the Legislature had changed our rule articulated in Mudge, 155 Md. at 4 , 141 A. at 397 , and Link, 174 Md. at 117 , 197 A. at 804 , that fees could not be allowed for services in the administration or distribution of the estate. See Gradman, 183 Md. at 638-39 , 39 A.2d at 811 . We then turned our attention to the use of the terms “legal services rendered” in Article 93 § 5 and “legal services rendered ... to an estate” in Article 93 § 7.

We held that as the attorneys’ fees incurred for the legatees’ interests were services “not rendered to the estate, the Orphans’ Court was without power to allow them a fee.” Gradman, 183 Md. at 641 , 39 A.2d at 812 ; see also American Jewish Joint Distribution Committee v. Eisenberg, 194 Md. 193, 199 , 70 A.2d 40, 42 (1949) (reviewing the amendment to § 5 and the enactment of § 7 and stating that “it cannot be supposed that the Legislature, if it had the power, intended that counsel fees shall be allowed for services not rendered to the estate”). While neither Gradman nor Eisenberg used the term “benefit to the estate,” this Court employed a “benefit to the estate” standard based on “legal services rendered” in Sullivan v. Doyle, 193 Md. 421 , 67 A.2d 246 (1949). In that case, this Court considered whether an administrator who misled a person into renouncing her right to administer the estate could be allowed attorney’s fees for an unsuccessful defense against removal. In holding that attorney’s fees could not be allowed, we explained that “legal services rendered by an attorney in defending letters of administration which are revoked cannot be said to be for the benefit of the estate.” 193 Md. at 432 , 67 A.2d at 251 .

We then addressed the ²²⁷ amendment to § 5 and the enactment of § 7 and stated as follows: “The explicit purpose of this section [§ 7], obviously intended for the protection of attorneys, is to authorize the