Ach v. Ach , 7 Mich. App. 228 ( 1967 )

Quinn, J.

As special administrator of the estate of Libor Ach, deceased, Stephen Ach filed his final account with the Shiawassee county probate court. This account, as amended, was allowed except for the amount of special administrator’s fees and expenses and the attorney fees for the special administrator. The probate judge took under advisement the decision on the amount of these fees and expenses but he never decided the amount of the fees and expenses. On appeal to the circuit court, the special administrator was allowed a fee of $100 and no expenses, and his attorney was allowed a fee of $225. The appeal to this Court followed.

CL 1948, §704.33 (Stat Ann 1962 Rev §27.3178 [284]) is controlling and provides in pertinent part as follows:

“Every guardian, testamentary trustee or special administrator shall be allowed the amount of his reasonable expenses incurred in the execution of his trust, and he shall also have such compensation for his services as the court in which his accounts are settled shall deem to be just and reasonable.”

On review of similar questions, our Supreme Court has consistently held,

“In the allowance of items of this character as a charge in favor of or against an executor a measure of discretion is vested in the trial court; and it is only when there appears to have been a manifest abuse of such discretion that the decision of the trial court will be overruled.” In re Baldwin’s Estate (1945), 311 Mich 288, 311.

This standard.was affirmed in In re Eddy Estate (1958), 354 Mich 334, 347.

The record before us does not establish a “manifest abuse of discretion” with respect to the fees allowed, nor does it do so with respect to disallowance of expenses claimed by the special administrator; The statute states “reasonable expenses incurred in the execution of his trust,” and from its action in disallowing any expenses, we infer the trial court found that none of the expenses claimed were reasonable within the context of the statute. A review of the record does not convince us such a finding was a manifest abuse of discretion, since the record fails to establish that the acts of the special administrator giving rise to the claimed fees and expenses were a necessity in the execution of his trust.

Affirmed, with costs to defendants.

T. Gr. Kavanagh, P. J., and McGregor, J., concurred.