Fairbairn v. Fisher, 58 N.C. 385, 5 Jones Eq. 385 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 385, 5 Jones Eq. 385

ROBERT FAIRBAIRN ayainst GEORGE FISHER AND THOMAS WILLIAMS.

Where there was no contest about the probate of the will of a testator, and his estate, amounting to $30,000, was easily collected, requiring few suits, and there was no extraordinary difficulties in the management of the estate, it was Held that $1,200 paid out in attornies’ fees, over and above $100 paid for particular services by other attornies was, apparently, unreasonable, and should not have been allowed by a commissioner, without proof in explanation of the nature and propriety of the charge.

Cause removed from the Court of Equity of Craven county.

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, (see 4 Jones’Eq. 390,) need not be further noticed. On the coming in of the answers, it was referred to Mr. F. O. Roberts, the clerk and master of the Cqurt of Equity of Craven, to take an account of thq 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

Debts of testator, $5,930 46

Amount paid Attornies, 1,308 59

Other charges for 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 for attornies’ fees. The facts were, that in the administration of the estate, the executors disagreed in the conduct of the business, and in the progress of the cause they mutually crimina-ted each other with mal-administration and wasting the assets, and with bad faith in the business. Eisher paid two gentlemen of the bar, one, four hundred dollars, and one three hundred dollars, and Williams paid two gentlemen three hundred each, and one eight dollars, making in all $1308 j 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 ai’ose chiefly between themselves, and their dissention was alleged as a ground for an application to remove Eisher from the office, which he resisted with much energy and accused his co-executor of instigating this charge against him; see the case referred to in 4 Jones’ Eq. 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.

McRae, Hubbard and Stevenson, for the plaintiff...

Badger, Haughton and J. W. Bryan, for defendants-..

Pbabsoit, C. J.

The plaintiff’s exception, because of the' allowance of credits to the amount of $1200, paid to four gentlemen of the bar for counsel fees, viz., their receipts for $300 each, to three attornies, one receipt for $200 to another attorney, and one receipt for $100 paid to one of the- first three-attornies.

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 to retain “ for necessary charges and disbursements in the management of the estate,” Bev. Code, chap. 46, section 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, 3 Ire. Eq. 9, am exception, because of an allowance of a counsel fee of $50 was-overruled. So in Love v. Love, 5 Ire. Eq. 201, an exception,, because of an allowance of $39, paid attornies, 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 the town of Newbern, leaving a stock of goods on hand,, worth some $12,000, and other effects, consisting of money invested, notes, book accounts, &c.; 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 good's on- hand,, $11,035 63

Cash- from other sources,. 18,327 02

$29,362 65

Debts of testator,. $5,930 46

Amount paid attornies, 1,308 59

Other charges for administration, 464 95

Commissions, 1,880- 12. 9,384 12'

Exclusive of interest, $19,778 53.>

deducting $108,59, paid to* attornies for special service in. collecting debts, which is not excepted to, leaves $1200,. 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 estate, 'for which special fees are allowed.

:Eor the purpose of advice in the administration of the estate, one attorney would seem to be-enough; certainly, fees paid to four attornies, 'for that purpose, is not “ a necessary charge or disbursement -in the management of the estate.” So, in respect to the amount; $1200, ’cannot be a necessary 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, Eisher, against a charge of rnal-ad-ministration, 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 mcmagement of the estate, but in a great measure from the 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 Cueiam, Decree accordingly.