Marks v. Semple , 111 Ala. 637 ( 1895 )

COLEMAN, J.

Clara E. Boykin and Lucy B. Micou, having recovered separate decrees against their guardian, Benjamin H. Micou, and his sureties, Thomas M. and Nicholas D. Barnett, each for the sum of eighty-eight thousand dollars, on the 4th of April, 1874, transferred said decrees to Henry C. Semple, with certain powers and trusts and for certain purposes, all of which are stated in the instrument of transfer and trust. In 1890 the trustee filed the present bill, the purpose of which is to obtain a construction of certain provisions of the trust, directions as to its execution, the correction of a mistake alleged to have been made by him in favor of some of the beneficiaries of the trust in a settlement made with them, credit for specified expenditures, the allowance of fees and commissions, and for a final settlement of the trust. Since the execution of the transfer of the decrees and creation of the trust, Clara E. Boykin and Lucy B. Micou have died, and since the filing of the bill, the trustee has died, but all their interests, as well as that of the other beneficiaries, are properly before the court. The respondents answered the bill, and the cause was submitted for decree. On the 18th of October, 1890;the court entered a decree, and also a decree on the 3d of October, 1893. Errors are assigned upon these two decrees, and the appellees have moved the court to strike them off, basing their motion upon the grounds, that said decrees are final, and that as appellants did not appeal from said decrees or either of them within the time allowed for an appeal from a final decree, they are thereby concluded.

This presents the first question for consideration. We know of no principle of law which would authorize the conclusion, that either of said decrees were final decrees in the sense that all the equities of the case had been adjudicated. Suppose an appeal had been prosecuted from the decree of October 18th, 1890, and the same had been affirmed by this court. Could any one, by examining the pleadings, the note of submission and the decree, determine whether the complainant was entitled to relief in the matter of the mistake alleged to have been made in the settlement with the children of Nicholas D. Barnett? Does the decree grant relief or deny relief in this respect? In what way does the decree adjudicate the question pertaining to the payment of the Pittman and Lanier judgments particularly referred to in the sixth paragraph of the bill? Are these payments to be allowed by the register in stating the account as proper credits or not? A reading of the bill will suggest other grounds upon which relief was prayed which were not adjudicated by this decree. The case was again set down for decision upon these questions, and which in fact were not adjudicated, until the final decree of October 11th, 1894.

The correct rule is stated in Garner v. Prewitt, 32 Ala. 13, where it is declared “that if all the equities between the parties are settled, and there remains only a reference to be had, for the ascertainment of the amount, the decree is •final.” A decree which settles only a part of the equities in the case is not final. Unless this was the rule, an appeal could be taken as often as a decree was rendered settling any of the equities of the bill, and which had no reference to the others. — Kimbrell v. Rogers, 90 Ala. 339; Walker v. Crawford, 70 Ala. 567.

An appeal will not lie from interlocutory decrees, except in cases provided for by statute; neither can assignments of error upon mere interlocutory orders or decrees, from which an appeal will not lie, be sustained. In such cases the assignment of error must be based upon the final decree. An erroneous interlocutory decree may be cured by a correct final decree. When an erroneous interlocutory decree furnishes the basis and is carried into a final decree, the error of the final decree, is the error against which the assignment must be directed.

■ The construction of the trust, expressed in the opinion of the chancellor, that the provision for the grantors, Clara E. Boykin and Lucy B. Micou, should not bear any of the expenses of executing the trust, was correct. The instrument is guarded in this respect, and it is clear that the grantees reserved to themselves certain property and interest, independent of all charges. The per centum of expenses imposed upon the other beneficiaries, seems to have been fairly and equitably proportioned. The mistake of the trustee, that the property to be conveyed to the wife of B. H. Micou and to her son, Benjamin Micorf, should not be burdened with any of the expenses incident to the execution of the trust, was a mistake of law and not of fact, and the trustee is not entitled to relief against such an error. The trust was fully executed as to the conveyance to these parties, before the filing of the bill, and the trustee is bound by his own acts. What is here said, is not intended to relieve Lucy Micou from responsibility, in so far as she assumed or caused the action of the trustee. As we understand the account stated for the settlement of the trust, and the decree thereon, this was the conclusion of the court. We find no error in allowing the credit for fees paid to Fitzpatrick and to Blakey. The property to be conveyed to the wife and child of Micou, and to the families of the Barnetts, was charged with the expense of obtaining and executing the decrees. There seems to be no question of the reasonableness of these fees, but only whether they are included in the terms of the trust. The guardian was entitled to a reasonable attorney’s fee in stating the accounts and making the settlements. These fees might have been allowed against the estate of the wards, and are included in expenses and charges incurred in obtaining the decrees. — Askew v. Myrick, 54 Ala. 30; Clark v. Eubank, 80 Ala. 584. We are of opinion that the court properly allowed credits for the settlement of the Tallassee Bridge Company judgments. Although this claim was not reduced to judgment until after the execution of the trust, its existence as a claim antedated the decrees of Clara and Lucy Micou. It was enforceable against both Clara and Lucy and the property subjected by them to the payment of the decrees in their favor; at least its liability was so threatened and involved’as to reasonably justify a.compromise of the claim.

There was error in allowing the trustee credit for the payment of the Lanier judgment. Upon the execution of the instrument creating the trust to the trustee and his acceptance of it, the rights of the parties thereto were concluded and fixed. The decree in favor of Clara E. Boykin and Lucy B. Micou, had precedence of the judgment recovered by Lanier. It is contended that this was a debt of honor, and that B. H. Micou, and the Barnetts desired that it be paid. This is an argument for the consideration of the beneficiaries and not for the court. As we have stated, the rights of the parties were fixed by the instrument creating the trust, and there is no authority given to the trustee for the appropriation of money, in payment of claims which palpably could not interfere with the execution of the decrees and of the trust.

There was error also in the allowance of the trustee commissions upon advances made annually, for the purpose of cultivating the plantations. These advances for the most part, were obtained from merchants by mortgaging i.he trust property. They were paid from the proceeds of the crops raised on the plantation. Neither such advancements nor payments are disbursements or collections, which would justify a charge for commissions. If the trustee had advanced his own money, he would not be entitled to more than legal interest. The trustee would be entitled to reimbursements for reasonable amounts expended to persons employed and paid by him for superintending the plantations, and he might be justly compensated for his own time and care expended for the same purpose. Commissions upon the net profits realized from the plantations — that which added to the trust property as its corpus — were properly allowed.— Beard v. Beard, 140 N. Y. 260.

The court erred in allowing the trustee a credit for fifteen hundred dollars, for professional serviées rendered by him in the case of the First National Bank and others. We reaffirm the rule which for a long time has prevailed in this State, that an executor, administrator or trustee, who is also an attorney and renders necessary professional services in that capacity, is entitled to a fair and reasonable compensation. — Harris v. Martin, 9 Ala. 895; Clark v. Knox, 70 Ala. 607. But it would be manifestly unjust to allow him personal compensation when he has employed counsel to represent him at a fair and reasonable price, for services rendered by him which properly devolved upon employed counsel, and which merely relieved such counsel from the performance of a part of their duties. As was held in Teague v. Corbitt, 57 Ala. 545, “Having employed counsel to defend it, and no necessity existing for any assistant or additional counsel, it would be unjust to impose on the estate the burthen of compensation to the administrator for an unncessary service.” It appears that Messrs Elmore & Gunter were employed to represent the trust, for a fee of three thousand dollars, which was paid by the trustee and allowed him as a credit. It is contended, however, that soon after the employment of this firm, Mr. Elmore was taken sick, and never able to give his personal services in the cause, and that Mr. Gunter was then comparatively inexperienced. If this firm was employed to secure the services of Mr. Elmore, and these services were not rendered by him, and if it be true that Mr. Gunter was not competent to represent the interests of the trust, we can find no justification for the payment of the fee of three thousand dollars. On the other hand, if the services of Mr. Gunter were reasonably worth th"ee thous- and dollars, he was competent to draw the answers in the case. While the evidence shows that the trustee rendered some professional services, it does not show that employed counsel were not competent and were not able and willing to perform every professional duty rendered by the trustee, for which he claims compensation. The case is fairly within the rule laid down in Teague v. Corbitt. We have not adverted to the fact that Troy was also employed by the trustee “because of the illness of Elmore,” for which he was allowed a fee of five hundred dollars. The credit of fifteen hundred should not have been allowed.

There was no objection to the credit for compensation to Mr. Phillips, attorney representing, the trustee in the bank case on appeal to the Supreme Court of the United States, and it was properly allowed.

The fee of eight thousand dollars allowed the trustee was excessive. The testimony of the trustee in stating the services rendered by him for which this fee was allowed, is in every respect candid and fair. The evidence before this court .is the same as that before the register and chancery court, and it is of a character to call for an adjudication uncontrolled by the conclusion reached. In arriving at the value of the services of an attorney, the amount involved and benefit received enter largely into the estimate, but by no means control it. The guardian and his bondsmen were largely involved in their partnership business, and it was evident that nothing would be left them after satisfying their creditors. By the terms of the trust, a liberal provision was made for each of their families. No obstacles were interposed by them in the collection of the decrees. While th settlement of the guardian account involved larg° amounts, it required but a short time to state the accounts and to conclude the settlement. The hypothetical questions propounded to witnesses in the main were calculated to elicit reasonably fair and pertinent answers. We are of the opinion that five thousand dollars for the recovery of the decrees, and their enforcements agains't the property, independent and in addition to the fees paid to Fitzpatrick and torBlakey, would be ample compensation, and no more should have been allowed. This amount, with commissions on amounts other than those which we have held were improperly allowed, would be fair and reasonable compensation for the trustee.

We find some difficulty in satisfactorily determining the question of “mistake of fact,” raised by the pleadings and determined by the decree of the chancery court. The bill shows that the trustee had executed deed to the children of N. D. Barnett and that they had been placed in possession of the property. The averment is “but complainaut alleges that the statement in said deeds that the property of N. D. Barnett had discharged its one-half of the expense of said trust were made by mistake and under a misunderstanding of the true facts.” In what the “mistake and misunderstanding” consisted is not specified. No objection, however, was raised by exception or demurrer. The final decree granting relief upon this averment of the bill, is based upon the report of the register. The statement of account by the register, which ascertained the amount upon which the final decree was based, contains credits which we have held should not have been allowed. We have also held that the conclusion of the trustee, that the property to -be conveyed to the wife and child of B. H. Micou, was not subject to the expense of obtaining and enforcing the decrees conveyed to the trustee, was a mistake of law, and not of fact. We further declare, that while the trustee was entitled to reimbursement for any over-payments made to the children of Barnett, if any such were made, and might retain the same out of any funds remaining in his hands, such payments or advances in excess were not a lien upon the lands conveyed to them. There was no authority . given to the trustee to make such payments or advances. His authority and duties were to enforce the decrees, to purchase therewith certain property, to convey free of expense certain property to the grantors and a certain amount of money, to-wit, $8,500 to each of the grantors, to pay all expenses necessary for these purposes, and then to convey the property as therein directed. The making of advances to these children before the execution of the trust and not in furtherance of it, were personal transactions between him, and these cestuis que trust, but not an execution of the trust. On the settlement with ■ them he is entitled to interest on such loans or advances, but they are not even proper bases for the allowance of commissions. — Foscue v. Lyon, 55 Ala. 456.

The court did not err in refusing to charge the trustee with the personal property on the plantation, and which was purchased with the lands. These remained on the plantations and were useful and necessary for the cultivation of the lands. There is no-evidence of a conversion or of waste as to this property by the trustee. The evidence shows that the cestuis que trust received the benefit of its use and consumption.

We have noticed all the assignments of error considered in the bri.fs of counsel. We are of opinion the rules -declared will enable the court, to proceed with the settlement without further difficulty.

It is ordered that the decree of the chancery court be reversed and annulled in so far as it conflicts with the rules and principles herein declared.

It is further ordered and decreed that the register proceed to hold a reference and state an account,. of- which notice will be given by him under the rules of the court, in accordance with the principles and rules indicated in this opinion, and report the same to the next term of the chancery court, to be held in Montgomery county, unless further time be' granted by the chancery court, and for this purpose the cause it remanded.

Reversed and remanded.