Leaving the present amount due........... $53,542 62 -which the decree requires to be paid, with interest, from November 29, 1904, when the bill was filed. The decree also provides that the defendants shall pay into court within 30 days from its date the sum of $15,000 to secure the correction of the defects enumerated in the decree, subject to the approval of the court, and which sum the decree says the plaintiff will then be entitled to receive.

We cannot agree with the two last-mentioned provisions of the decree. The court in its opinion, after reciting the various defects disclosed by the evidence, thus characterizes the conduct of the plaintiffs: "Instead of undertaking to remedy these matters of their own motion, they sit still, doing nothing, bring suit, and have the court to unravel as best it can the tangled web they are in a measure responsible for. Having so acted, they must take and suffer all the consequences necessarily resulting from their arbitrary conduct." Interest is allowed on judgments and decrees, as damages, and, in view of the conduct of the plaintiffs so well described in the passage quoted from the court's opinion, we do not think they should be allowed inIn referterest as provided by the decree. ence to the $15,000 required to be paid into court for the purposes mentioned, we think it would be a hardship to require the defendants to pay so large a sum into court to protect the plaintiffs against the consequences of their own default as found by the court. Moreover, this course would in all probability result exclusively to the benefit of some third person as purchaser of the property. Mr. Perky's death makes it very improbable that any of his heirs or representatives will desire to carry out his scheme, or to become purchasers of the property for any purpose, and in that event the only way in which the defendants or Mr. Perky's estate can receive any benefit from the correction of the defects indicated is by allowing now as an absolute credit whatever the testimony shows it will cost to correct the same. All experience shows that costly improvements add comparatively little to the selling value of country lands, and the correction of

these defects cannot be expected to add anything to the price that may be obtained at a sale under this decree. But if the cost of these corrections is allowed now as a credit, Mr. Perky's representatives, if they should desire to bid upon the property and should become its purchaser, can elect whether they will complete the work under the direction of a builder and architect of their own selection, or convert the property to some other use as they may deem most advantageous to them. We have a satisfactory standard for the allowance of such a credit in the sworn report of Mr. J. A. Dempwolf, a disinterested and competent architect, and his testimony before the court, in which he says that all the defects required by the court to be corrected can be corrected at a cost of $5,365. Mr. Dempwolf was appointed by the court for this purpose, with the assent, or at least without the objection, of the parties, and we know of no better guide in the matter than the opinion of a disinterested and competent architect, whose conclusion has not been seriously questioned, and we think the amount he states should be allowed as an absolute credit, and the whole matter be closed by the decree to be passed. The matter will then stand thus:

2. ATTORNEY AND CLIENT-AUTHORITY-EVI

DENCE.

Where one of two administrators employed counsel to foreclose a mortgage for the estate, and, though the other administrator took no part in the authorization, it appeared that he was aware of the employment of counsel, and did not disclaim their services, the facts showed counsel duly authorized to represent the estate. 3. EXECUTORS AND ADMINISTRATORS-COUNSEL FEES.

It is not necessary for administrators to procure an order of the orphans' court authorizing the employment of counsel.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 4112. 459.]

4. SAME AMOUNT OF FEES.

The fact that an administrator employed three attorneys to represent the estate in a certain matter did not warrant an allowance against the estate of greater compensation than would have been proper in case of the employment of one attorney.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 448456.]

Appeal from Orphans' Court, Baltimore County.

Appeal by Edward L. Ward and another from an order of the orphans' court refusing to allow them counsel fees for professional services rendered the estate of Frederick W. Koenig, deceased. Order reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

S. S. Field, for appellants. Joseph L. Donovan, for appellees.

PEARCE, J. This appeal is from an order of the orphans' court of Baltimore county refusing to allow certain counsel fees for alleged professional services rendered by the appellants to the estate of Frederick W. Koenig, deceased.

That

The appellants filed a petition January 18, 1907, alleging that they were employed by the administrators of Frederick W. Koenig, deceased, to conduct certain litigation necessary to the settlement of said estate. in pursuance of said employment they instituted, in the name of said administrators, in the circuit court for Baltimore City, proceedings for the foreclosure of a mortgage for $2,000 given to said Frederick W. Koenig in his lifetime by Katherine J. and Gustav J. Kordula on July 31, 1902, payable in 10 years from date, in annual installments of $100 or more at the option of the mortgagors, with interest at 51⁄2 per cent. per annum. That pending these proceedings the mortgagors obtained an injunction restraining the prosecution of these proceedings, which was finally sustained on the ground that there had been no default; but that said proceeding nevertheless resulted in the settlement of the whole mortgage debt in the year 1906, six years in advance of its full maturity, and greatly to the interest of said estate. That, in further pursuance of said employment, one of the petitioners, Edward L. Ward,

acting as agent and attorney, sought and procured a purchaser for certain leasehold property on Light street, in Baltimore City, which had been offered and withdrawn by said administrators, for want of a bid by them deemed adequate, at an advance of considerable amount over said bid. That, in further pursuance of said employment, said petitioners represented said administrators both in the orphans' court in Baltimore county, and on appeal in the Court of Appeals, as to exceptions filed by the purchaser of certain leasehold property on Cross street, in Baltimore City, sold by said administrators, which exceptions were sustained by the orphans' court and also by the Court of Appeals on appeal from said orphans' court, but that said appeal was taken in good faith, and was diligently and vigorously prosecuted by said petitioners. This petition was accompanied by a certificate of Messrs. John Grason and W. George Marley, two members of the Baltimore county bar in good standing, recommending the allowance of $900 as a reasonable and proper fee for said services. This petition was answered by the widow and certain of the distributees of Frederick W. Koenig, excepting to the allowance of any fee for said alleged services, and alleging: (1) That no legal services were rendered by the petitioners to said estate. (2) That if rendered at all they were gratuitous, and not by direction of the orphans' court, or by request of said administrators. (3) That the charges were excessive. (4) That there was no necessity for employment of counsel. (5) That the petitioners were counsel for certain of the distributees of Frederick W. Koenig, who had filed a caveat against the will of said Frederick W. Koenig, which caveat had been sustained, and who had been allowed in the orphans' court a fee of $1,500 out of said estate, for services in the caveat case, but which allowance was refused by the Court of Appeals, on appeal from the orphans' court; and that the claim in the present case was only a scheme to obtain in this proceeding the fee disallowed as above stated. (6) That the petitioners were counsel for said caveators, and not for said administrators; that Messrs. Biddison and Rogers, said administrators, were both practicing attorneys and fully competent to settle the estate without counsel or attorneys; that said Ward furnished the purchaser for the Light street property of his own motion and without employment by said administrators; and that the sale of the Cross street property was set aside because of the erroneous and unskillful preparation of the advertisement thereof, prepared by said Ward. Testimony was taken, and upon hearing had the orphans' court passed an order dismissing said petition and refusing to allow any fee, because the court was of opinion the fee asked for should not come out of the estate of the decedent.

We think it is quite clear that the reason assigned by the orphans' court for disallowing

*

Ex

the claim does not justify the order, and that, if the petitioners have any just and legal claim, it should be allowed out of the estate of Frederick W. Koenig. The rejection by this court of the fee of $1,500, allowed the petitioners and John S. Biddison as attorneys for Elizabeth Becker, a daughter of Frederick W. Koenig, in prosecuting successfully a caveat filed by her to an alleged will of her father, before probate, bears no analogy to this question and affords no ground for the order appealed from. As was said in the caveat case: "The purpose and operation of the caveat were not to recover the estate, or to protect it from spoliation, but to determine who should get it, and in what proportions. ** Under these circumstances, the orphans' court had no authority to allow the counsel fees to be paid out of the estate." But where counsel are employed by administrators, and render professional services under such employment, the administrators are entitled to be allowed reasonable counsel fees, paid or to be paid. "After letters have been issued, it is conceded that counsel fees are properly allowed in prosecuting and defending claims, in the discharge of the duties of the administration." parte Young, 8 Gill, 287. And this is so though the services may have proved unsuccessful, where there was reasonable ground for instituting or defending proceedings. Carson v. Phelps, 40 Md. 101; Geesey v. Geesey, 96 Md. 633, 54 Atl. 616. Mr. Ward testified that he, together with Mr. Gontrum and Mr. Morris, were employed by the administrators to foreclose the Kordula mortgage, and to represent them in the injunction proceeding growing out of the attempted foreclosure, also to represent the administrators, both in the orphans' court and in this court in the matter of the exceptions to the Aaron sale, and that after the offer and withdrawal of the Light street property at public sale he procured a purchaser therefor at an advanced price, who was accepted by the administrators. Mr. Biddison, one of the administrators, testified that he employed Messrs. Ward, Gontrum, and Morris to represent the administrators as attorneys in the foreclosure proceedings of the Kordula mortgage, and in the exceptions to the Aaron sale in the orphans' court and in this court, and that he requested Mr. Ward, after the Light street property was withdrawn, to look for a purchaser and sell the property so that the estate could be closed, and that he regarded all the services rendered, as of great value from a legal standpoint, and that he considered $900, the fee asked, to be fair and reasonable. It does not appear that Judge Rogers, Mr. Biddison's co-administrator, ever expressly authorized the employment of these attorneys, or conferred with them or with him, in reference to their employment. He testified that he knew of no services performed by them which could not have been performed by the administrators, they being attorneys, and that he re

garded the fee asked as unreasonable and exorbitant. But it does appear that he was aware they were representing the adminis trators as stated, and that he did not disclaim their services, nor advise his co-administrator of his disapproval of their employment. Under these circumstances, the petitioners must be regarded as duly authorized by the administrators to represent them in the matters mentioned. It would, doubtless, have been prudent to procure an order of the orphans' court authorizing the employment of counsel; but such previous order is not necessary to justify the allowance of reasonable counsel fees in proper cases. Geesey v. Geesey, 96 Md. 632, 633, 54 Atl. 616. The testimony in this case, as in the case last cited, is conflicting and unsatisfactory as to the reasonableness of the fee asked. If that fee had been already paid and allowed, we should feel warranted, under the decision above mentioned, in refusing to disturb an account embracing such allowance; but, under the circumstances of this case, we are required to consider and determine the reasonableness of the charge. As was said in Geesey v. Geesey, supra: "It is not possible to accurately determine the real value of the services of an attorney by the amount involved, or by what appears of record in the case, as a great deal of labor of a careful attorney is performed in the preparation of the case outside of the courthouse."

We must assume from the evidence, which upon that point is undisputed, that the proceeding to foreclose the Kordula mortgage, notwithstanding the successful injunction, resulted in the payment in full of that mortgage, several years before its full maturity, thus facilitating the settlement of the estate. The exceptions to the Aaron sale were not so clearly well founded, as to make it unreasonable to resist them in either court, and both administrators seem to have so thought, and the testimony seems clear that Mr. Ward sought and procured a purchaser for the Light street property under the expectation, if not the actual assurance from Mr. Biddison, of receiving the usual real estate broker's commissions. It is to be observed that Messrs. Grason and Marley in their certificate do not state they have examined into, or are familiar with, the character and extent of the services rendered, as is generally, or at least frequently, stated in such certificates, and that they speak in general and indefinite terms. It should also be observed that the compensation for the services rendered should not be greater because three attorneys were employed instead of one. Mr. Ward, in fact, appears to have performed the larger part of the work, though the division of the fee is a matter of adjustment between all the attorneys employed.

The commissions for sale of the Light street property at the established rate of 2% per cent. would be, on $2,200, $55; our conclusion is that, for services in connection with

the Kordula mortgage, a fair and reasonable allowance would be $150, and for services in the exceptions to the Aaron sale, in the orphans' court and in this court, the sum of $300-aggregating $505.

The order of the orphans' court appealed from will therefore be reversed, that the above allowance may be made in the settleIment of said estate.

Order reversed, and cause remanded; the appellees to pay the costs.

(106 Md. 413)

MARYLAND JOCKEY CLUB OF BALTIMORE CITY v. STATE. STATE V. MARYLAND JOCKEY CLUB OF BALTIMORE CITY et al. APPOLD et al. v. SAME. JENKENS v. SAME. FITZGERALD v. SAME. ALT V. SAME. FISHER v. SAME.

(Court of Appeals of Maryland. June 24, 1907.) 1. CONSTITUTIONAL LAW-VESTED RIGHTS IMPAIRMENT.

Acts 1870, p. 124, c. 89, provides that the city of B. and those citizens who have contributed or may contribute to improvements on land for the use of the state agricultural association shall, in case of dissolution of the association, receive from the net proceeds of sale of its property such sums as the amount of money paid by the city or individual citizens may bear to the aggregate amount contributed by the state; the city and the individual citizens having vested rights in the city and individual contributors, together with the state, in the proceeds of the association's property in case of its dissolution. Held, that Acts 1890, p. 57, c. 73, attempting to postpone the rights under the act of 1870 of contributors, and to give priority in such proceeds to the payment of all debts owing by the association, is unconstitutional, as impairing vested rights, and taking the property of the contributors and giving it to others.

2. STATUTES-EFFECT OF PARTIAL INVALIDITY. While the state may, by proper legislation, waive the priority of its claims in favor of other creditors, yet Acts 1890, p. 57, c. 73, by which the state attempts to postpone the priorities of itself and others, being unconstitutional, so far as it attempts to postpone the vested rights of others, and it being apparent that it was the intention that the act should take effect as an entirety, it is wholly inoperative.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 58-66.]

3. CONSTITUTIONAL LAW-VESTED RIGHTS IMPAIRMENT.

Acts 1886, p. 198, c. 128, appropriating $3,000 for the state agricultural association, and providing that in case of dissolution of the association the state shall be preferred to such amount, and Acts 1904, p. 246, c. 141, providing for such dissolution, and making the same provision for preference of such $3,000, are unconstitutional, as impairing the vested rights in such proceeds given by Acts 1870, p. 124, c. 89, to contributors for improvements for the association.

viding that contributors to improvements for the association should share in the proceeds of its property in case of its dissolution, the state is not entitled, as to such appropriation, to so share in such proceeds.

County; N. Charles Burke, Judge.
Appeals from Circuit Court, Baltimore

Suit by the state against the Maryland Mechanical & Agricultural Association for its dissolution. From an order sustaining exceptions to the auditor's account for distribution of the proceeds of the association's property, appeals are taken by the Maryland Jockey Club of Baltimore City, the state being respondent, and by the state, Lemuel T. Appold and others, Benjamin W. Jenkens, Delano S. Fitzgerald, George W. Alt, and D. K. Este Fisher, surviving executor and trustee, the Maryland Jockey Club of Baltimore City and others being respondents. Affirmed in part, and reversed in part and remanded. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and ROGERS, JJ.

Edgar H. Gans, and W. Calvin Chestnut, for Maryland Jockey Club of Baltimore City. Albert C. Ritchie, for mayor and city council of Baltimore. D. K. Este Fisher, in pro. per. Thomas Mackenzie, for Appold and others. Bryan, Atty. Gen., for the State. J. Hanson Thomas, for Jenkens. Lemmon & Clotworthy, for Fitzgerald.

BRISCOE, J. The questions in this case arise upon exceptions to an audit, distributing the proceeds of sale of the land and improvements of the Maryland Mechanical & Agricultural Association, under Acts 1904, p. 246, c. 141, providing for a dissolution of the association, the sale of its property, and a division of the proceeds of sale. There are seven appeals contained in the record, but as they practically present the same questions they will be considered together.

The property consisted of land and improvements, situate in Baltimore county, on Park Heights avenue, containing about 77 acres, and known as the "Pimlico Race Track." It was sold under a decree of the circuit court of Baltimore county by Charles H. Nicholai, trustee, to the Maryland Jockey Club, for the sum of $70,000. The association was incorporated by Acts 1867, p. 192, c. 128, for the encouragement of science and practice of agriculture and of the mechanic arts, as connected therewith by the holding of exhibitions, and generally to promote the interests of agriculture and of the arts and sciences. By this act the sum of $25,000 was appropriated to be expended to purchase ground suitable for the purpose of holding exhibitions thereon, and it was provided that, should the association at any time dissolve, the trustees or their successors shall convey the land so purchased, together with all improvements thereon made, free of all incumbrance, to the state of Maryland, and also if the association shall hold no exhibitions on the land for three successive years,

then the land shall be conveyed to the state. By Acts 1870, p. 124, c. 89, it was subsequently provided that the corporation of the city of Baltimore and their successors and those citizens of the state of Maryland or of the United States, who have contributed or may hereafter contribute to the purchase of land or to improvements to and upon land for the use of the Maryland Agricultural & Mechanical Association, shall in case of a dissolution of the association be entitled to and receive from the net proceeds of the sale of all land and improvements or other property now acquired or hereafter to be acquired by the association such sum as the amount of money paid by the corporation or individual citizens may bear to the aggregate amount contributed by the state of Maryland, the city of Baltimore, and the individual citizens respectively. By Acts 1886, p. 198, c. 128, the state appropriated the further sum of $3,000 and provided that in case of dissolution of the association the state shall be preferred to the amount of this appropriation. And by chapter 73, p. 57, of the Acts of 1890, it was provided that in case of the sale of the property the net proceeds of the sale shall be applied, first, to the payment of all debts due by the association for the land and improvements thereon, and all other debts due by the association, and after the payment of the debts in full, the balance of proceeds of sale shall be divided and paid to the state of Maryland, the city of Baltimore, and to the citizens of Maryland and of the United States who have heretofore contributed or may hereafter contribute to the purchase of land for the association or improving the same or for other uses of the association, in proportion to the amounts which they have severally contributed. The next act of assembly is chapter 141, p. 246, of the Acts of 1904, and is the act under which the sale was had in this case. It provides for a dissolution of the association, a sale of the property, and a division of the proceeds among the parties entitled, and in the proportions heretofore prescribed by the acts of assembly, saving to the state its preferred claim of $3,000, as provided by the act of 1886. The bill of complaint in this case was filed shortly after the passage of the last-named act for a sale of the property, and as the distribution of the fund here in controversy will depend upon the legal effect of this act, and the previous legislation relating thereto, we have deemed it proper for a clear understanding of the case to cite them somewhat in extenso.

It appears from the record that the principal claim in controversy is the claim of the Maryland Jockey Club, as assignee of a note, originally given by the association to ExGov. Frank Brown, dated December 19, 1890, and payable to Frank Brown for the sum of $23,108.81. The amount of the claims of the state of Maryland, except the appropriation (Acts 1872, p. 462, c. 282), of Baltimore City, and the various individual contributors, as

evidenced by certificates issued by the association under the act of 1870, are practically undisputed except as to their priority of payment. In the Auditor's account filed on the 2d of March 1906, the claim of the Maryland Jockey Club was allowed in full, as a preferred claim under Acts 1890, p. 57, c. 73. The state was allowed a preferred claim of $3,000 under Acts 1886, p. 198, c. 128. The claim of George W. Alt for services as secretary and treasurer of the association was allowed in full, and the residue of the fund was distributed, pro rata, between the state, Baltimore City, and the individual contributors. On the 14th day of December, 1906, the various exceptions set out in the record to the Auditor's account were sustained by the cir cuit court of Baltimore county, and the account was set aside. The papers were referred to the auditor, with directions to state a new account, distributing the net proceeds of sale under the rule of equality fixed by the act of 1870, that is, between the state of Maryland, Baltimore City, and the individual contributors pro rata. The claim of George W. Alt was rejected altogether as not having been proved. And from this order these appeals have been taken.

We come, then, to a consideration of the claims, as presented on the record, and to the various exceptions filed to them. We shall dispose of them separately, and as briefly as the law and facts will permit.

(1) The claim of the Maryland Jockey Club, as assignee of the note, originally given by the association to Ex-Gov. Brown, was allowed by the Auditor in full as a preferred claim under Acts 1890, p. 57, c. 73, and Acts 1904, p. 246, c. 141, but was disallowed as a preferred lien by the court below. This brings us to the consideration of the principal controversy in the case. This claim is made up of sums contributed by Gov. Brown to the association for the erection of buildings, and for the purpose of making improvements to and upon land for the use of the association. The indebtedness was approved and audited by the executive committee of the association on the 19th day of December, 1890, and the note was given covering the amount of this indebtedness. The action of the committee was subsequently ratified and approved by the association. We have examined the testimony with respect to this claim with the utmost care and consideration, and we are satisfied, in view of the proof and surrounding circumstances, that the money contributed by Gov. Brown and secured by the note went into the improvements upon the land of the association, and the claim is a proper one to participate in the distribution of the fund, under Acts 1870, p. 124, c. 89. But while we are of the opinion that the objections to the note are not supported by the evidence, we all agree that it cannot be allowed as a preferred claim, or to be paid in full out of the fund in the hands of the trustee. By Acts 1870, p. 124, c. 89, each