Fairbairn v. . Fisher

The bill was filed to recover from the defendants, as executors of Thomas Fairbairn, the legacies bequeathed to the plaintiff, which embraces the whole residue of the estate after paying some pecuniary legacies. The bill also contained allegations of misconduct in the executors, on which was based a prayer for their removal and the appointment of a receiver, and showed an angry hostility between the two executors, but which, having been disposed of on an interlocutory branch of the case (Fairbairn v. Fisher,57 N.C. 390), need not be further noticed. On the coming in of the answers, it was referred to Mr. F. C. Roberts, the clerk and master of the court of equity of Craven, to take an account of the estate in the hands of the executors, who made a report, to which the parties filed exceptions, but it is only deemed necessary to notice one of them. He reported:

Amount of sale of goods on hand ........................... $11,035.63 Cash from other sources ................................... 18,327.02 ---------- Total of debits ..................................... $29,362.65

Debits of testator ............................ $5,930.46 Amount paid attorneys ......................... 1,308.59 Other charges of administration ............... 464.95 Commissions ................................... 1,880.12 9,584.12 --------- ----------

Clear balance in their hands ........................ $19,778.53

The plaintiff objected to the allowance of so large an amount of attorneys' fees. The facts were that, in the administration of the (386) estate, the executors disagreed in the conduct of the business, and in the progress of the cause they mutually criminated each other with maladministration and wasting the assets, and with bad faith in the business. Fisher paid two gentlemen of the bar, one $400 and one $300, and Williams paid two gentlemen $300 each, and one $8, making in all $1,308, which was excepted to. There were divers other payments of fees to other gentlemen, and to some of the same for specific services amounting to $104, which was not excepted to. It was admitted that these gentlemen had much trouble and responsibility in contesting this matter, but it appeared that these difficulties arose chiefly between themselves, and their dissension was alleged as a ground for an application to remove Fisher from the office, which he resisted with much energy, and accused his coexecutor of instigating this charge against him. Fairbairn v. Fisher, 57 N.C. 390. It was insisted in this Court that the estate ought not to bear the burden of these heated contests brought about by themselves, and that the allowance, on the face of it, was unreasonable. The plaintiff's exception, because of the allowance of credits to the amount of $1,200 paid to four gentlemen of the bar for counsel fees, viz., their receipts for $300 each to three attorneys — one receipt for $200 to another attorney and one receipt for $100 paid to one of the first three attorneys.

It was insisted by the counsel for the defendants that as there was no evidence in respect to these vouchers, the Court should presume the disbursement reasonable and proper. The commissioner, it seems, has acted upon this presumption in allowing these vouchers, but the Court takes a different view of the subject.

Besides commissions, an executor or administrator is allowed (387) to retain "for necessary charges and disbursements in the management of the estate." Rev. Code, chap. 46, sec. 38. There is no doubt, among the necessary charges, reasonable fees paid to counsel are embraced. This construction accords with general usage, and in Hester v. Hester, 38 N.C. 9, an exception, because of an allowance of a counsel fee of $50, was overruled. So, in Love v. Love, 40 N.C. 201, an exception because of an allowance of $39 paid attorneys was overruled, with a remark by the Court, "because the plaintiff has failed to show that the charges were improper or unreasonable."

In our case, the statement of the condition of the estate "speaks for itself," and calls for explanation on the part of the executors, who claim a credit for so large an amount. The testator was a Scotch merchant who died in 1857, in New Bern, leaving a stock of goods on hand worth some $12,000, and other effects consisting of money invested, notes, book accounts, etc., making an estate of some $30,000. A statement made out by Mr. Freeman, by the direction of the court from the papers in the cause, shows this state of things:

Amount of sale of goods on hand ........................... $11,035.63 Cash from other sources ................................... 18,327.02 ---------- $29,362.65

Debts of testator ........................... $5,930.46 Amount paid attorneys ....................... 1,308.59 Other charges for administration ............ 464.95 Commissions ................................. 1,880.12 9,584.12 --------- ----------

Exclusive of interest ............................... $19,778.53

Deducting $108.59 paid to attorneys for special service in collecting debts, which is not excepted to, leaves $1,200, which, in our opinion, calls for explanation, particularly as there was no contest about the probate of the will, no suits in reference to claims against the estate and only a few actions were necessary to collect in the (388) estate, for which special fees are allowed.

For the purpose of advice in the administration of the estate, one attorney would seem to be enough; certainly, fees paid to four attorneys for that purpose is not "a necessary charge or disbursement in the management of the estate." So in respect to the amount, $1,200 cannot be anecessary charge in the management of the estate. Indeed, the receipt for $100 purports, on its face, to have been a fee for defending one of the executors (Fisher) against a charge of maladministration and resisting an effort to remove him from the executorship, or require him to give bond. So that was not a "charge in the administration of the estate." The other four receipts are generally for professional services and advice, but we presume the receipts for so many lawyers, and so large an amount of fees, originated not in what can be considered the management of theestate, but, in a great measure, from bitter misunderstanding between the two executors and the litigation which grew out of their quarrels.

This exception is allowed. A majority of the Court are of opinion that a credit of $100 should be given to each executor to cover the charge of counsel fees in addition to the $108.59 not excepted to.

The account must be reformed in reference to this exception.

PER CURIAM. Decree accordingly.

Cited: Kelly v. Odum, 139 N.C. 280.

(389)