Saint Ignatius Roman Catholic Congregation, Inc. v. Harvey

Singley, J., delivered the opinion of the Court. Unhappily, once again, we are called upon to review the propriety of a counsel fee allowed to an attorney, who in this instance was also the personal representative of a decedent’s estate. A somewhat similar question was recently considered in Wolfe v. Turner, 267 Md. 646 , 299 A. 2d 106 (1973); Riddleberger v. Goeller, 267 Md. 64 , 296 A. 2d 393 (1972); Riddleberger v. Goeller, 263 Md. 44 , 282 A. 2d 101 (1971), and Lusby v. Nethken, 262 Md. 584 , 278 A. 2d 552 (1971), and cases there cited. ⁶³⁶ The long and short of the problem is that Maryland Code (1957, 1969 Repl. Vol.) Art. 93, § 7-602 (c) directs that in setting a counsel fee the orphans’ court “. . . shall take into consideration, in making such determination, what would be a fair and reasonable total charge for the cost of administering the estate under this article, and it shall not allow aggregate compensation in excess of that figure.” While the allowance of commissions to a personal representative within the limits fixed by statute is ordinarily not subject to review, American Jewish Joint Distrib.

Comm. v. Eisenberg, 194 Md. 193 , 70 A. 2d 40 (1949), an appeal from the allowance of a counsel fee will lie in the event of an abuse of discretion, Gradman v. Brown, 183 Md. 634 , 39 A. 2d 808 (1944). As we said in Wolfe v. Turner, supra, 267 Md. at 653: “In brief, the power of an orphans’ court to allow counsel fees is derived from statute. The allowance requires the exercise of discretion and judgment. An award will not be disturbed in the absence of proof of abuse of discretion . . . which generally means that the fee allowed is shown to be so unreasonably small or so unreasonably high as to amount to an abuse.” In the case before us, Ann Irene Jones died in Wicomico County on 24 February 1970, leaving a gross estate of some $141,000.00, the residue of which was bequeathed, in equal shares, to six religious corporations, a charity, an educational association and one individual.

The assets of the estate consisted of general market securities, cash in the approximate amount of $13,500.00, and real estate valued at $12,500.00. J. Edgar Harvey and Thomas F. Wallace qualified as her personal representatives, but Mr. Wallace died on 14 January 1971, less than one year after his qualification, and before the administration of the estate had been completed. On 30 November 1971, Mr. Harvey, as surviving personal representative, filed his administration account. In February, 1972, he sought and received ⁶³⁷ from the orphans’ court an allowance of commissions at the maximum rate permitted by Code (1957, 1969 Repl.

Vol.) Art. 93, § 7-601: 10% on the first $20,000.00 and 4% on the remaining assets of the estate, or $6,875.39, subject, however, to the 10% tax thereon, of which 10% was to be paid to the estate of Mr. Wallace, and the remaining 90%, amounting to $5,569.08, was to be retained by Mr. Harvey. Additionally, Mr. Harvey successfully petitioned the orphans’ court for an allowance of a counsel fee of $5,100.00: $100.00 of which was to be paid to Mr. Harvey for legal services rendered the decedent during her lifetime; $950.00 to the firm of Piper & Marbury for the preparation of two fiduciary income tax returns; and the balance of $4,050.00 to be paid to Mr. Harvey for legal services rendered in connection with the administration of the estate. In sum, Mr. Harvey sought allowances totaling $11,975.39 for the settlement of a $141,000.00 estate. One of the appellants objected to these allowances.

Having met with no success in the orphans’ court, an appeal was taken to the Circuit Court for Wicomico County from the order allowing the counsel fee. From an order of the circuit court affirming the allowance of the fee, this appeal was entered. As was the case in Wolfe v. Turner, supra, this was a “simple” estate. In other words, no claims were filed against it, nor was any prosecuted by the personal representative, nor does there appear to have been problems relating to valuation or the sale of real estate.

Unlike the situation in Wolfe v. Turner, however, here, counsel was also the personal representative, and so far as we have been