The appeal in this case is taken from an order of the Orphans' Court for Frederick County. On the 4th day of December, 1901, the appellant, Maria L. Grabill, administratrix pendente lite of P. Louisa Plummer, deceased, filed a petition *Page 60 in the Orphans' Court of Frederick County, asking to be allowed in her account as such administratrix a certain sum as reasonable counsel fees for successfully defending in the Circuit Court for Frederick County, a caveat to the will of P. Louisa Plummer, deceased, and "that these fees be paid first out of the corpus of the fund."
On the 5th of December, 1901, the appellee, Reuben N. Plummer answered the petition, stating among other things that as the surviving husband of P. Louisa Plummer, he had renounced all interest under the will; that he was not a party to the caveat proceedings and does not take any interest under the will in controversy; that his interest in the estate is derived under the law, and "that his portion of the estate ought not to be diminished by being charged with any part of the costs, and expenses incident to the caveat litigation; that in the final distribution of the estate the counsel fees and costs incurred in defending the will against the caveat should be charged to the interest of the parties taking under the will."
On the 9th day of December, 1901, an order was passed by the Orphans' Court of Frederick County directing that the costs incurred on account of the caveat contest "shall be charged to and paid out of the portion of the estate passing under the will in course of administration and that the portion of the estate to which the surviving and renouncing husband is entitled under the law shall be distributed to him clear of expenses and counsel fees." And it is from this order that this appeal has been taken.
The first question to be considered by us is presented on a motion to dismiss the appeal. There can be no question that this motion must prevail because the appellant, as administratrixpendente lite of P. Louisa Plummer deceased, has no interest in the subject-matter of the appeal, and cannot be aggrieved by the passage of the order. Johns v. Caldwell, 60 Md. 262; Cecil v. Cecil, 19 Md. 72.
We think, however, the question sought to be raised on this appeal was correctly decided by the Orphans' Court of Frederick *Page 61 County and if the case was properly before us we would affirm the order appealed from. By sec. 292 of Article 93 of the Code it is provided that a widow by renouncing all claim to a devise or bequest of personal property made to her by the will of her husband, she shall be entitled to one-third part of the personal estate which shall remain after payment of his just claims against him and no more. And by sec. 4 of the Acts of 1898, ch. 331, it is provided that the provisions of secs. 291 to 306, both inclusive, of Art. 93 of the Code relating to the rights of widows in the estates of their husbands shall apply to, and be enforced in favor of surviving husbands, so as to give to, vest in and confer upon them the same rights in the estates of their deceased wives which those sections give to, vest in and confer upon widows in the estates of their deceased husbands.
It is quite clear then that the interest which the surviving husband in this case was entitled to receive from his wife's estate was in no way connected with the caveat controversy or dependent upon the wife's will, but was derived from and rested upon, the provisions of the statute.
The appellee was not a party to the caveat contest, but had renounced the will. He received no benefit from the services rendered by the counsel in the case, and his interest in his wife's estate was not affected by the result of the controversy over the will. We are therefore of the opinion that as the interest and estate of the surviving and renouncing husband in the estate of his wife, is fixed and determined by statute, the Orphans Court of Frederick County was entirely right in directing in this case that it should be distributed clear of costs and counsel fees incurred in the caveat contest.
Appeal dismissed with costs.
(Decided April 1st, 1902.) *Page 62