(112 A.) Order reversed and case remanded, to the decree as the court might deem proper, and the end that an order may be passed in accord-guardian ad litem of the only infant defendant ance with the opinion of this court; the submitted her rights to the court's protection, costs to be paid out of the shares of the es- while all the other parties having the interest tate belonging to the children of the testator. just referred to asserted it in their answers. Only one of the defendants, however, appealed from the decree. After it had been affirmed the appellant's solicitors applied for and obtained an order of the court below directing the auditor to allow them out of the fund for distribution a fee of $500 for their services in that court and on appeal, subject to the usual right of exception. To this allowance, as made in the audit, exceptions were filed by the testator's sister, to whom the fund had been decreed to be payable. The pending appeal is from an order overruling these exceptions and ratifying CLAYTON v. STEIN et al. (No. 60.) (Court of Appeals of Maryland. Jan. 12, 1921.) Appeal and error 1099(10)-Right of attorneys to compensation from fund held settled by former appeal. The decision on a former appeal that attorneys who represented unsuccessful parties in a suit for the construction of a will were entitled to compensation in so far as their services benefited infant claimants to the fund is conclusive on a second appeal from the order allowing their compensation, where the successful claimant to the fund did not attack the amount of the compensation allowed, but only the right of the attorneys to any allowance out of the fund. Appeal from Circuit Court of Baltimore City; Robert F. Stanton, Judge. Charles F. Stein and another, attorneys in a suit for the construction of a will, were allowed a fee payable out of the fund decreed to Nannie Clayton, and the latter appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. John Watson, Jr., of Baltimore, for appel lant. Richard S. Culbreth, of Baltimore, for ap pellees. THOMAS, J. This is the second appeal in this case. The case as presented by the former appeal (135 Md. 684, 109 Atl. 444) was stated by Judge Urner as follows: "In the case of Smith v. Baltimore Trust Co., 133 Md. 404, 105 Atl. 534, this court affirmed a decree construing the will of James E. Clay ton and holding that as to the one-sixth of his estate involved in the proceeding he died intestate. As a result of the intestacy thus adjudicated the affected portion of the testator's estate was decreed to be vested in his sister, Nannie Clayton, as his only heir at law. According to the theory of construction which failed of acceptance the estate in question would have passed to the children of two deceased aunts of the testator. The petition for the construction of the will was filed by the trustees to whom the estate had been devised under limitations which had terminated at the the audit. "The record includes a stipulation that the services rendered by the present appellee's solicitors in the proceeding for the construction of the will, required much time and effort; that the amount involved is about $10,000; that $500 is a moderate charge for such services; that these solicitors were not employed by the trustees or the party decreed to be entitled to the fund; and that they have received no fee from the parties they represented. It thus appears that no question is raised as to the amount of the fee allowed the appellee's solicitors, and that the only inquiry is whether it is properly chargeable against the fund decreed to be distributable to the present appellant." After discussing the decisions bearing upon the only question there involved, the court reached the conclusion that under all the circumstances it would be proper to allow out of the fund to the appellee's solicitors such an amount as the court below might determine would be "reasonable compensation for their services in that court, in so far as they may be regarded as having practically represented the interest of the infant defendant," and the order of the court below was re versed and the case remanded to the end that the order appealed from might be thus modi fied. After the case was remanded to the lower court, the appellees in the former appeal filed a petition in that court setting out the decision of this court, the stipulation as to the value of the services contained in the former record, and the previous amount allowed, and praying the court to modify its order in accordance with said decision. The court below thereupon passed an order that the petitioners be allowed the sum of $400 as compensation for their services, unless cause to the contrary be shown on or before the 26th day of February, 1920, provided a copy of the petition and order be served on Nannie Clayton, or her solicitor of record, On the 24th of February, 1920, Nannie Clayon or before the 21st day of February, 1920. time of the institution of the proceeding. Of ton filed her answer to the petition, in which the parties whose interests were adverse to she admitted the stipulation as to the value the theory of intestacy, one adult defendant by of the services, but denied that the petition his answer merely stated his desire for such a contained a correct excerpt from the opinion of this court, and further denied that "the petitioners rendered any services whatever for which they should be allowed any compensation out of any fund mentioned or referred to" in the cause, and on the 28th day of April, 1920, the court below passed the order from which this appeal was taken, in which, after reciting that no sufficient cause to the contrary had been shown, it was ordered that the present appellees be paid a fee of $400 for their services in the case in that court. It will be observed that here, as on the former appeal, no question was raised or objection made in the court below in regard to the amount allowed in the nisi order of that court. The only question raised by the answer of Nannie Clayton, the appellant, was as to the right of the petitioners to any allowance out of the fund in question. As that question was fully considered and finally adjudicated in the former appeal, the order appealed from in this case must be affirmed. Park Land Corp. v. M. & C. C. of Balt., 128 Md. 611, 98 Atl. 153; Cahill v. M. & C. C. of Balto., 129 Md. 17, 98 Atl. 235; Diggs v. Smith, 130 Md. 101, 99 Atl. 952. Order affirmed, with costs. 2. Appeal and error 323 (3)-Separate appeal by cotrustee must be dismissed. Code, art. 5, § 26, relating to appeals from any decree or order, does not authorize an appeal by one of two cotrustees, and an appeal by such trustee alone must be dismissed. 3. Appeal and error 148-Appeal by those not parties of record must be dismissed. An appeal by those who are not parties to the cause who did not intervene by petition to be made parties for the purpose of an appeal and whose interests in the subject-matter do not affirmatively appear from the record must be dismissed. Two Appeals from Circuit Court, Howard County, in Equity; Wm. H. Thomas, Wm. Henry Forsythe, Jr., and Robert Moss, Judges. "To be officially reported." Proceedings between Joseph L. Donovan, a decree denying the relief asked for by the trustee and granting prayer of the answer that the two trustees be discharged, the named trustee and Susan Miller Zepp and others, who were not parties to the cause, appealed. Appeals dismissed. COE, URNER, STOCKBRIDGE, and OFArgued before BOYD, C. J., and BRISFUTT, JJ. Richard S. Culbreth, of Baltimore, for appellants. George Weems Williams, of Baltimore (James Clark, of Ellicott City, and Bond & Parke, of Westminster, on the brief), for appellee. BRISCOE, J. this record now before us, and they are taken There are two appeals in from a decree of the circuit court for Howard county passed on the 15th day of April, 1920. The decree appealed against is as follows: It is ordered and decreed this 15th day of April, 1920, by the circuit court for Howard county, sitting as a court of equity, for the reasons statea, that the relief prayed in the petition of Joseph L. Donovan, trustee, filed in this cause on February 20, 1920, be, and the same is hereby, denied; that, in accordance with the prayer of the answer of James Nicholas Miller filed in this cause on March 13, 1920, the said James Clark and Joseph L. Donovan, trustees, in the above-entitled cause, be, and they are hereby, discharged from the further administration and execution of the trust created by the agreement executed by James Nicholas Miller and Catherine B. Miller, dated December 1, 1919, and filed in this cause and by the decree of this court passed in this cause on December 18, 1919, and (in accordance with the agreement of counsel for James Nicholas Miller) that the premium on the bond of said trustees and all costs in this case, to be taxed by the clerk of this court, be paid by the said James Nicholas Miller. And it is further. the said agreement of James Nicholas Miller ordered and decreed that the trust created by and Catherine B. Miller, dated December 1, 1919, and set forth in said decree of this court dated December 18, 1919, be, and the same is hereby, declared to have been revoked and to be at an end. as trustee, and James Nicholas Miller. From it is said: (112 A.) "The general doctrine does not appear to | to in this case. Nor do we find anything upadmit of dispute that trustees have all equal on the record which gives the trustee Donopower, interest, and authority, and cannot act van such a position in the case as will entitle separately, as executors. may, but must join him to appeal from the decree. On the conboth in conveyances and receipts." trary, the cotrustee does not unite in the position assumed by the appellant, and where See Hill on Trustees, 305; 2 Story's Equity, neither of the settlers appeal, but appear § 1280. In 28 A. & E. Ency. of Law (2d Ed.) p. 986, the general rule is thus stated, as supported by authority, that when the administration of a trust is vested in several trustees, they all form but one collective trustee, and must exercise the powers of the office in their joint capacity. Their interests and authority being equal and undivided, they cannot act separately but all must join. Thus one trustee alone has no power to convey, lease, or bind the trust property or to perform any act resting in the sound discretion of the trustees as a body. 39 Cyc. 307; Mackenzie v. Gerke, 118 Md. 334, 84 Atl. 480; Knabe v. Johnson, 107 Md. 619, 69 Atl. 420; Preston v. Poe, 116 Md. 1, 81 Atl. 178. [2] There is nothing in the provisions of section 26 of article 5 of the Code relating to the right of appeal from any decree or order, etc., in conflict with the principles above stated and announced by the authorities referred satisfied with the revocation. [3] It is obvious, we think, that the second appeal cannot be maintained. The interest of the appellants in the subject-matter of this appeal do not affirmatively appear from the record. They are not parties to the cause and did not intervene by petition, to be made parties for the purposes of an appeal. In the recent case of Bernstein, Cohen & Co. v. Stansbury, 119 Md. 316, 86 Atl. 349, this court said: "If the appellants were not parties to the original suit, they manifestly have no standing in that cause." now to appeal, or to contest the decree passed See section 26, art. 5, Code P. G. L.; Preston v. Poe, 116 Md. 1, 81 Atl. 178; Knabe v. Johnson, 107 Md. 616, 69 Atl. 420. For the reasons stated, both appeals will be dismissed. Appeals dismissed, with costs. [END OF CASES IN VOL. 112] THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. ADMINISTRATION. V. DEATH OF PARTY AND REVIVAL See Executors and Administrators. (A) Abatement or Survival of Action. 54 (N.H.) Cause of action for pain and suf- See Shipping. ADMIRALTY. ADOPTION. 6 (Vt.) Agreement referring to "said child" ACCORD AND SATISFACTION. ration v. Bresnan, 182. Acceptance of check held not accord and sat- 483. 12(1) (Md.) Receipt of less than due with (Del.Gen.Sess.) Defendant not guilty un- ACCOUNT. II. PROCEEDINGS AND RELIEF. 19 (Vt.) Judgment to account does not Act permitting defenses after judgment to ACCOUNT STATED. 5 (Del.Super.) Rendition of statement held 7 (Del.Super.) Plaintiff not required to ACTION. 172. 14 (Del.Gen.Sess.) Fact of birth of child Corroborative testimony required not confin- Evidence sufficient to warrant conviction.-Id. ADVERSE POSSESSION. I. NATURE AND REQUISITES. 16(3) (Conn.) In determining whether sion. 48 (Conn.) Continuity of possession_not (F) Hostile Character of Possession. See Abatement and Revival; Dismissal and land of specified width not color of title.-Hines II. NATURE AND FORM. 30 (R.1.) Declaration held to state cause IV. COMMENCEMENT, PROSECUTION, 65 (Pa.) Where all damages had accrued 69 (N.H.) Case ordered continued until re- v. Symington, 814. "Color of title" is created by instrument pur- 80(1) (Md.) Transfers of railroad right of II. OPERATION AND EFFECT. 100(1) (Md.) Color of title does not ex- |