Compton v. Barnes

Dorsey, J.,

delivered the opinion of this court.

The last will and testament of John Barms, the testator, having been admitted to probate, nearly twelve months after-wards Wilson Compton,'the guardian of Barnes Compton, the grandson of the deceased, filed a caveat to vacate the will; and on a petition filed for that purpose, obtained an order from the orphans court of Charles county, authorising the guardian to employ counsel to prosecute the caveat; and as a compensation for the professional services thus obtained, to pay the sum of three hundred and fifty dollars. The appellees, the executors, having appeared to the caveat, applied to the orphans court to make an allowance for the employment of counsel to resist tire caveat. Whereupon the court passed an order, making the same allowance to the counsel to be employed in opposing the caveat, that had been allowed to the counsel to be retained in its support; and directed the payment thereof, out of the estate of the testator. From this order the present appeal has been taken. And in support of it, on behalf of the appellant, it has been urged, that should the will, on the successful prosecution of this caveat, be vacated and annulled, Barnes Compton, as the heir and next of kin of the testator, will become entitled to the whole of his real and personal *57 estate; and that the order of the court appealed from, is an appropriation of a portion of his estate, for the employment of counsel to defeat his estate. If the will had not been admitted to probate, and letters testamentary not granted thereon, the ground urged in opposition to the order might be entitled to grave consideration. But after tire probate of the will, and the granting of letters testamentary to the executors, it was their bounden duty to appear to the caveat, and in the defence to make all necessary preparations for its trial, upon its merits. The employment of counsel for that purpose, follows as a necessary incident to the unquestioned powers and duties of the executors; and it would be inconsistent with every principle of reason, law, and justice, not to allow to the executors out of the estate of the deceased, the expenses by them necessarily incurred in the faithful discharge of their duties.

If the right of appeal, in this case, be asserted, solely on the ground of the injury inflicted on the rights and interests of the appellants, as the heir and next of kin of tire deceased, he has no standing in this court, and his appeal should be dismissed. It not appearing by the record that the caveat has been ruled good, the appellant has shewn no prejudice to his interests by the order appealed from; and consequently, on that ground would be incompetent to the prosecution of the present appeal. But the appellant being, by the will, a devisee for life of the estate of the deceased, has, in virtue thereof, a right to call upon this court to determine the legality of the order, and the reasonableness of the allowance to be paid to counsel, sustaining the will. The legality of the order, this court have already sanctioned, and in the absence of all proof, shewing a disparity between the value of the services of counsel opposing, and of counsel supporting, the caveat, we think it would come with an ill grace from appellant, to say that the allowance made to the appellees counsel, has been excessive; when, at the same time, he obtained from the orphans court the same allowance to the counsel employed by him, in sustaining the caveat.

The order of the orphans court, appealed from, is affirmed, with costs.

ORDER AFFIRMED, WITH COSTS.