Baxter v. Jones

196 S.E.2d 193 (1973) 283 N.C. 327

Jessie BAXTER et al.
v.
Effie Leah Murrell JONES et al.

No. 84.

Supreme Court of North Carolina.

May 9, 1973.

Basil L. Whitener, and Anne M. Lamm, Gastonia, for plaintiffs-appellees.

Whitesides & Robinson by Henry M. Whitesides, Gastonia, for defendants-appellants.

HIGGINS, Justice.

The case after transfer was called for argument at an hour earlier than that previously fixed for the hearing in the Court of Appeals. Hence plaintiffs' counsel, through no fault of their own, were not present to participate in the argument before this Court. In order that their rights may not be prejudiced by failure to participate in the oral argument, we have endeavored to conduct a most detailed review of their brief and of the record to the end that facts favorable to the petitioners may not be overlooked.

The record indicates that Mrs. Pearl Boyd Baxter preferred that her property should go to the children of her deceased husband, rather than to her own heirs and distributees. However, beyond legal question, her preference was not carried out in the manner required by law. Exhibit A, a part of the plaintiffs' complaint, and copied in the decision of the Court of Appeals, was not executed as a will and it was not a trust instrument. Such was the hesitating conclusion of Judge Thornburg. It was the emphatic conclusion of the Court of Appeals and is the conclusion of this Court. Exhibit A failed to qualify as a trust instrument.

The foregoing is the background out of which the question now before us arose. Did Judge McLean commit error in awarding plaintiffs counsel fees and directing payment out of Mrs. Baxter's estate? The order of Judge Thornburg directed that the costs, including plaintiffs' attorneys' fees, "[S]hall be taxed against the estate of Pearl Boyd Baxter, deceased; said attorneys' fees shall be assessed by the Court upon the completion of all appeals in this action . . .." Judge Thornburg did not tax fees; he undertook to direct that a later judge perform that function. The authority of the court to award fees to the attorneys for the losing parties and directing their payment out of the recovery of the winning parties is purely statutory. G.S. § 6-21 provides: "Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court: . . . (2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder;. . ." There follows a provision dealing with attorneys' fees in a caveat proceeding not pertinent here. In a caveat proceeding the question is whether the writing is a will. The proceeding is in rem. An in rem proceeding is one in which, strictly speaking, there are no parties. In re Will of Cox, 254 N.C. 90, 118 S.E.2d 17. Except as so provided by statute, attorneys' fees are not allowable. Wachovia Bank & Trust Company v. Schneider, 235 N.C. 446, 70 S.E.2d 578. This proceeding is not a caveat. It cannot be said to be a proceeding for the construction of a trust agreement. Unless there is a trust instrument, there is no basis for construction. There must be a trust instrument before any proceeding to construe it may be maintained. All courts— superior, appeals, and this Court—agree that the letter described as Exhibit A is neither a will nor a trust instrument.

Chief Judge Mallard in the opinion of the Court of Appeals properly concluded that Judge Thornburg's judgment was erroneous and irregular and undertook to decree the future right of the parties. Judge Mallard observed that: "[T]hough a superior court judge is vested with great power, he does not have the power to deny a motion and also to allow it in the same judgment, or to bind another judge by such a premature anticipatory and conditional ruling." Observing further, he said: "[A]nd therefore it is improper for such judge to include in his judgment how he would rule on a hypothetical state of facts if presented to him at some future date." Hence, when Judge Thornburg ordered that costs and fees shall be taxed against the estate of Mrs. Baxter upon the completion of all appeals, he was attempting to bind the future judge. The attempt was contrary to both law and rules of practice.

The usual practice in awarding attorneys' fees is to make the award at the end of the litigation when all the work has been done and all the results are known. The petitioners contend the defendants' failure to except to that part of Judge Thornburg's judgment concerning attorneys' fees, became the law of the case and required the future judge at the end of the litigation to award the fees. The contention is not supported by the record. The defendants gave notice and perfected an appeal. The notice of appeal was an exception to the judgment. "An appeal is itself an exception to the judgment and to any matter appearing on the face of the record proper. A sole exception to the judgment or to the signing of the judgment likewise presents the face of the record proper for review." 1 Strong's N. C. Index 2d, Appeal and Error, § 26, citing 24 cases. "Where there is error on the face of the record an appeal presents the matter for review, and the judgment may be modified to conform to legal requirements." In re Burrus, 275 N.C. 517, 169 S.E.2d 879. The anticipatory order of Judge Thornburg was challenged by the appeal and did not become the law of the case, and did not authorize Judge McLean to order fees paid to plaintiffs' attorneys from Mrs. Baxter's estate.

Judge Clifton L. Moore for this Court in Little v. Wachovia Bank & Trust Company, 252 N.C. 229, 113 S.E.2d 689, stated the rule: "The courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter arise, or give abstract opinions." Judge Thornburg attempted to tie the hands of the judge presiding at the appropriate time (when all the appeals have been heard) for fixing attorneys' fees. This anticipatory action was beyond his power and not binding on the judge confronted with the question at the time of decision—that is at the end of the trial. That part of the order of Judge Thornburg fixing the fees was interlocutory and entered at a time prior to the decision that Exhibit A was not a trust instrument. At all times the provisions of G.S. § 6-21 stood in the way of the right of the court to decree that plaintiffs' counsel should be paid out of the estate for legal services not involving a caveat and not involving the construction of a trust instrument.

Judge McLean was under a misapprehension of the law when he ruled that he was bound by the order of Judge Thornburg. Judge McLean's order was neither required by Judge Thornburg's anticipatory decision nor authorized by G.S. § 6-21.

The cause is remanded to the Superior Court of Gaston County with direction that Judge McLean's order be

Reversed.