See, e.g. , Lowe v. Lowe , 6 Md. 347, 352 (Md. 1854) ("The jurisdiction of the orphans court is not general but limited."), Talbot Packing Corp. v. Wheatley , 172 Md. 365, 190 A. 833, 835, (Md. 1937) ("It is only in those cases in which property is claimed by the administrator against the estate that the orphans' court is authorized to determine the title thereto"), Crandall v. Crandall , 218 Md. 598, 600, 147 A.2d 754 (Md. 1959) ("[I]t must be remembered that Orphans' Courts are not courts of general jurisdiction; on the contrary, they are courts of special and limited jurisdiction only"), Flater v. Weaver , 108 Md. 668, 71 A. 309, 312 (Md. 1908) ("The orphans' court is restricted to the exercise of powers expressly delegated, which cannot be extended by construction or implication"), Duca v. United States , 236 F.Supp. 747, 751 (D. Md. 1964) ("All concerned appear to have ignored the fact that an Orphans' Court in Maryland has no jurisdiction to decide questions of title to real estate."), Pratt v. Hill , 124 Md. 252, 92 A. 543, (Md. 1914) ("[T]here are many cases ... which determine that, as between an administrator representing the estate and a third person claiming title to the property, [the orphans'] court has no jurisdiction."), Barter Systems, Inc. v. Rosner , 64 Md. App. 255, 494 A.2d 964, (Md. Ct. Spec. App. 1985) ("A judge of the Montgomery County Circuit Court who sits as a judge in the orphans' court cannot, however, exercise his authority and power as a circuit court judge.").A second bedrock proposition in this case is that insurance contracts are non-probate assets and are not within the regular purview of Orph
Our research indicates that it was in the early 1900's that the Court first employed the term "benefit to the estate" in determining the propriety of allowing counsel fees from the estate. See Flater v. Weaver, 108 Md. 668, 677, 71 A. 309, 312 (1908); Koenig v. Ward, 104 Md. 564, 566, 65 A. 345, 346 (1906); Marshall v. Dobler, 97 Md. 555, 558, 560, 55 A. 704, 705-06 (1903). 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.
See, on this point, 2 Sykes, Probate Law and Practice § 887 at 41 (1956) and cases cited. As we pointed out in Wolfe v. Turner, supra, the allowance of a fee to counsel for a personal representative is clearly within the discretion of the orphans' court, and in the absence of an abuse of this discretion, will not be disturbed. It is equally clear that under Code (1957, 1968 Repl. Vol.) Art. 5, § 9 an appeal would normally lie from an order granting or denying the allowance of a counsel fee, Sonneborn v. Hutzler, 134 Md. 424, 436, 107 A. 251 (1919); Flater v. Weaver, 108 Md. 668, 676, 71 A. 309 (1908); Miller v. Gehr, 91 Md. 709, 715-16, 47 A. 1032 (1900); 1 Sykes, Probate Law and Practice, supra, § 243 at 252 (1956). However, the substantial revision of Art. 93 (the Decedents' Estates law), effected by Ch. 3, § 1 of the Laws of 1969, added a new ingredient.
McCaa, 213 Ala. 579, 105 So. 669; Dent. v. Foy, 214 Ala. 243, 107 So. 210; Evatt v. Miller, 114 Ark. 84, L.R.A. 1916C, 759, 169 S.W. 817; McPaxton v. Dickson, 15 Ark. 97; Paget v. Brogan, 67 Ark. 522, 55 S.W. 938; ReWalden, 174 Cal. 776, 164 P. 639; Re Heeney, 3 Cal.App. 548, 86 P. 842; Re Lux, 134 Cal. 3, 66 P. 30; Re Currier, 19 Colo. App. 245, 74 P. 340; Simmons v. Hubbard, 50 Conn. 574; Re Simmons, 55 Conn. 239, 11 A. 36; Re Officer, 122 Iowa 553, 98 N.W. 314; Re Colburn, 186 Iowa 590, 173 N.W. 35; Dougherty v. Cummings, 20 Ky. L. Rep. 1948, 50 S.W. 551; Bailey v. Barclay, 109 Ky. 636, 60 S.W. 377; Girty v. Girty, 180 Ky. 786, 203 S.W. 730; McGoodwin v. Shelby, 181 Ky. 230, 204 S.W. 171, 182 Ky. 377, 206 S.W. 625; Sims v. Birdsong, 22 Ky. L. Rep. 1049, 59 S.W. 749; Hood v. Maxwell, 23 Ky. L. Rep. 1791, 66 S.W. 276; Clarke v. Garrison, 25 Ky. L. Rep. 1999, 79 S.W. 240; Hughes's Succession, 14 La. Ann. 876; Linton v. Moore, 4 La. 434; Delano's Succession, 125 La. 869, 51 So. 1019; Flater v. Weaver, 108 Md. 668, 71 A. 309; Bigelow v. Morong, 103 Mass. 287; Mulloney v. Barnes, 266 Mass. 50, 164 N.E. 917; Runkle v. Smith, 90 N.J. Eq. 478, 106 A. 474; Re Larrabee, 98 N.J. Eq. 655, 130 A. 195; Re Fulper, 99 N.J. Eq. 293, 132 A. 834; Lee v. Lee, 39 Barb. 172; Osborne v. McAlpine, 4 Redf. 1; Re Meeker, 9 Daly 556; Re Smith, 1 Misc. 269, 22 N.Y. Supp. 1067; Re Kreidler, 68 Misc. 412, 7 Mills 559, 124 N.Y. Supp. 628; Re Vorndran, 132 Misc. 611, 230 N.Y. Supp. 326; Re Nockin, 15 N.Y.S.R. 731; Re Hartmann, 133 Misc. 739, 232 N Y Supp. 670; Gunning v. Lockman, 3 Redf. 273, 4 Abb. N.C. 173; Patterson v. Miller, 72 N.C. 516; Alexander v. Alexander, 120 N.C. 472, 27 S.E. 121; Re Gratton, 136 Or. 224, 298 P. 231, 79 A.L.R. 517; Fields v. Fields (Ore.), 7 P.2d 975; Stephens's Appeal, 56 Pa. 409; Harrison's Estate, 221 Pa. 508, 70 A. 827; McCloskey's Estate, 12 Phila. 74, 35 Phila. Leg. Int. 153; Moore's Estate, 8 Pa. Co. Ct. 447; Di Orio v. Cantone, 49 R.I. 452, 144 A. 148.
It is generally held that an order of the character involved herein is appealable under a statute like ours. This has been held in cases of allowances to trustees ( Williams v. Morgan, 111 U.S. 684 28 L.Ed. 559, 4 Sup. Ct. Rep. 638; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Battery Park Bank v. Western Carolina Bank, 126 N.C. 531, 36 S.E. 39); in orders directing an administrator to pay an attorney's fee ( Flater v. Weaver, 108 Md. 668, 71 A. 309); and judgments allowing attorneys' fees and alimony pending suit for divorce ( Sharon v. Sharon, 67 Cal. 185, 7 P. 456, 635, 8 P. 709; Shirey v. Shirey, 79 Ark. 473, 96 S.W. 164; McCreary v. Robinson, 92 Tex. 408, 49 S.W. 212; Daniels v. Daniels, 9 Colo. 133, 10 P. 657). We are of the opinion, therefore, that since the order specifically directs the receiver to pay the attorney's fee, it is appealable as a final judgment.
An examination of the facts contained in this record has led us to the conclusion that there was no necessity for the employment of counsel and the institution of this proceeding, and that the order appealed from should not have been passed. A motion was filed to dismiss the appeal upon the ground that the order is not subject to appeal under the statutes relating to appeals from the Orphans' Courts of this State. This motion must be denied upon the authority of Flater vs. Weaver, 108 Md. 668, wherein it was held that an appeal will lie from an order of the Orphans' Court directing an administrator to pay a sum of money for legal services rendered to him or to the distributees of the estate. Order reversed and petition dismissed, with costs.