Opinion
No. 33014.
March 14, 1938.
1. EXECUTORS AND ADMINISTRATORS.
An order allowing an attorney's fee in an ex parte proceeding for services rendered to predecessor of present administratrix and trustee could not be sustained on ground that administratrix should have objected to attorney's filling a petition, where neither petition nor proof showed any power in administratrix or trustee to make a contract binding estate, and it was not shown that predecessor was insolvent or was out of the state (Code 1930, section 1734).
2. EXECUTORS AND ADMINISTRATORS.
Ordinarily, an administrator or executor who employs an attorney is personally liable under terms of employment and will be entitled, in connection with annual and final settlement, to credit for such reasonable sums as have been paid for attorney's services in management or on behalf of estate if court be of opinion that services were proper and rendered in good faith (Code 1930, section 1734).
3. EXECUTORS AND ADMINISTRATORS.
In absence of statute, debts contracted by an administrator or executor are personal obligations and are not debts of the estate, and that is especially true in regard to attorney's fees (Code 1930, section 1734).
4. EXECUTORS AND ADMINISTRATORS.
The chancellor had no authority to allow attorney's fees in ex parte proceeding for services rendered to predecessor of administratrix and trustee where there was no evidence of any employment contract, will conferring power, if any, on trustee to hire an attorney was not offered in evidence, and final account did not show any petition by predecessor for allowance of attorney's fees (Code 1930, section 1734).
APPEAL from the chancery court of Washington county. HON. J.L. WILLIAMS, Chancellor.
Cooper Thomas, of Indianola, for appellant.
The petition of B.B. Allen, attorney, should not have been considered by the court and all testimony thereunder should have been excluded by the court.
We submit that it is unheard of in the administration of estates in Mississippi for a chancery court to consider a petition by an attorney for himself, asking that he be allowed attorney's fees, where such petition is filed in the administration proceedings.
Murphy v. Harris, 48 So. 232; Howell v. Myer, 63 So. 232; Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 73 Miss. 555, 19 So. 300.
There are many other cases supporting the general statement of the rule that the ex parte petition of attorney himself should not be considered under facts such as are shown to exist in this record. It also appears to be the general rule almost everywhere.
In re Wilson's Estate, 265 N.Y. Supp. 672; In re Kruger's Estate, 76 P. 891.
The filing of exceptions to the final account and the hearing thereon was the result of the negligence and carelessness of the administratrix incurring such liability as existed for the payment of attorney's fees in connection with said exceptions.
If any liability should exist for the payment of attorney's fees in connection with the exceptions to said account, such liability should fall upon the one whose negligence makes such exceptions necessary. Why should the estate itself be burdened with attorney's fees or other expenses caused by the negligence of his representative?
Ross v. Battle, 39 S.E. 287; Macklin v. Hobb, 105 N.W. 305; In re Taft's Will, 260 N.Y. Supp. 294; Morrow v. Allison, 39 Ala. Rep. 70; James v. Craighead, 69 S.W. 241; 2 Schouler on Wills, Executors and Administrators, sec. 1544, page 1673; 24 C.J. 106, sec. 544.
The allowance of $1000 for fees in connection with the final account were excessive, exorbitant and should not be allowed to stand.
Brown v. Franklin, 145 So. 752; King v. Wade, 166 So. 327.
B.B. Allen, of Indianola, for appellee.
Counsel invokes the law of executors and administrators, when in fact this estate is being run as a trust estate and appellant should long since have been discharged as administratrix. Her sole duties now are those of trustee, regardless of the name she is called by. She is in fact acting as trustee.
Counsel raises the question of my capacity to sue for my fee, and calls this an ex parte hearing. It was heard on petition by agreement and the fact that it was tried in the same case as administration cuts no figure.
Afro-American Sons Daughters v. Webster, 161 So. 318; Hudson v. Poindexter, 42 Miss. 304.
Appellant filed no objection notice or plea whatsoever to my petition, but merely objected to the testimony for the reason that the same was "incompetent, immaterial, and irrelevant — on the petitions and issues therein."
My contention is that the question of my right to maintain this suit should have been raised by plea in abatement as required by the statute, and this plea should have been in writing in the lower court. It cannot be raised for the first time in this court.
Sec. 1734, Code of 1930; Murphy v. Harris, 39 Miss. 286, 48 So. 232; Hudson v. Poindexter, 42 Miss. 304; Carradine v. Carradine, 33 Miss. 698; Watkins Co. v. Gutherie Co., 38 So. 390; 65 C.J., sec. 538, page 577, sec. 539.
Counsel claims that the work which I did in filing and defending the final account in the lower court, and in this court, was result of my own negligence. This is a unique way of charging someone else with responsibility for his own wrongs. I had no way of preventing him from excepting to the account. The account was filed in good faith and was correct, and was approved by the lower court and this court. Likewise, his exceptions were held unfounded in both courts. He, therefore, cannot have any standing in this court such as would justify him in taxing me for his own misdeeds.
L. Barrett Jones, of Jackson, for appellee.
Counsel for appellant in his brief raises the question that appellee had no right to bring this suit in his own name. The contention of appellant now comes too late, for if there is any well settled law in the State of Mississippi, it is that the capacity in which a plaintiff sues, or his right to sue, must be challenged eo limine, or it is waived, and the record in this case shows that appellant did not challenge the right of appellee to sue, or the capacity in which he sued by any pleading filed in the case, or by any objection or statement made during the course of the trial. This thought is a pure afterthought of appellants.
Sections 514, 515, 600, 1587, Code of 1930.
We contend that Mrs. Hancock had no right to petition the court for any allowance of attorney's fees, for the good and sufficient reason that she had been removed, as executrix and trustee, long prior to the filing of the annual account (her successor qualified in January of 1936), and if Mr. Allen was to get his fee allowed, he had to proceed in the manner followed by him — that is, by filing a petition in the estate proceeding, and seek a judgment requiring the present executrix and trustee to pay his fees. A petition by Mrs. Hancock would have had no standing, for her right to petition the court for anything had been ended by the mandate of the Supreme Court, and the qualification of her successor, the present appellant.
B.B. Allen, the appellee, filed his petition "in the matter of the estate of J.N. Johnson, deceased, v. Catherine Alexander Reedy, Administratrix de bonis non," as an attorney at law. In the petition he alleged that the appellant, Catherine A. Reedy, administratrix, etc., was then in office, and that prior thereto Mrs. Nell Johnson Hancock had served in that capacity, and that he represented her as her attorney in the year 1935; that, upon her going out of office, in his capacity as attorney he prepared and filed a final account for Mrs. Hancock; that Mrs. Catherine A. Reedy filed exceptions and objections thereto, which were disallowed on a hearing; and the final account was approved and allowed by the court after an extended hearing; that thereafter Mrs. Reedy appealed to the Supreme Court, where the case was heard; that appellee represented Mrs. Hancock in both the chancery and the Supreme Court. The case was affirmed in the Supreme Court, the final account being approved and allowed; 173 So. 800.
The appellant, Mrs. Reedy, administratrix, etc., appeared in court by her attorney, filed no pleadings, but objected to all the evidence which tended to sustain the allegations of the petition. The final account, and other proceedings in connection therewith, were offered in evidence by the appellant. There was considerable testimony as to the degree of skill of the attorney who filed Mrs. Hancock's final account, and the value of the services rendered, a disinterested attorney testifying to the effect that the value of B.B. Allen's services, as detailed by him, was $1,000.
It appeared that Mrs. Hancock had served as administratrix and trustee of the estate by appointment of the chancery court, her predecessor having died. The appointment by the chancery court was contested, and the case appealed to this court; the opinion therein, removing Mrs. Hanock, is to be found in the case of Alexander v. Hancock, 174 Miss. 482, 164 So. 772, 165 So. 126. There was no evidence of any contract of employment between the attorney at law and his client, Mrs. Hancock, as administratrix and trustee, nor was there any evidence that such contract had existed between him and Mrs. Reedy, the then administratrix and trustee. The will conferring power, if any, upon the trustee was not offered in evidence. The final account does not show any petition for the allowance of attorney's fees by Mrs. Hancock, as administratrix or otherwise, nor is there any rejoinder by Mrs. Hancock in this ex parte proceeding. There was no express contract on the part of Mrs. Hancock, as administratrix and trustee, with Allen, as attorney, to file the final account.
It is the general practice, when an attorney files a final account, for the administratrix to pray the allowance to her of a reasonable sum paid by her to her attorney for services in the preparation and presentation of the account. The decree here, allowing this sum, leaves the present administratrix and trustee entirely unprotected as against a contest thereon, upon payment by her of the amount awarded to the attorney in the decree, should this allowance later be objected to by parties interested in the estate.
The appellee, in an effort to uphold the order or decree in the court below, allowing the attorney's fee in this proceeding, seeks to avoid the controlling statute and the decisions of this court by asserting that it was the duty of the administratrix to object to his filing the petition, as a party, or as being an improper party, citing the several statutes considered to be applicable. There is no merit in the contention. Neither the petition nor the proof showed any power in the administrator or trustee to make a contract binding the estate; nor was it shown that Mrs. Hancock, the administratrix, was insolvent, or that she was out of the state.
This case presents, not a question of misjoinder or non-joinder of parties, but of failure to prove any liability on the part of the estate. At most it is here shown that Mrs. Hancock was liable on a quantum meruit, for the value of the services of the attorney as her representative in making and filing the final account.
Ordinarily, and generally, when an administrator or executor employs an attorney, he is personally and directly liable under the terms of employment; and in such case will be entitled, in connection with his annual and final settlement, to credit for such reasonable sums as have been paid by him for the attorney's services in connection with the management, or on behalf of the estate, if the court be of the opinion that the services were proper and rendered in good faith. See section 1734, Code of 1930. Debts contracted by an administrator or executor are personal obligations, and not the debts of the estate; and especially is this true in regard to attorney's fees. Howell v. Myer, 105 Miss. 771, 63 So. 233, 234, and authorities there cited. The facts of this case bring it within the announcement in the above case, wherein the court said: "Ordinarily, debts contracted by executors and administrators are obligatory only as personal obligations, and cannot primarily bind the estates committed to them, except in cases specially authorized by statute. This has been repeatedly held true of attorney's fees due for professional services in the management of estates." See Clopton v. Gholson, 53 Miss. 466; Norton v. Phelps, 54 Miss. 467; Hines v. Potts, 56 Miss. 346; Parham v. Stith, 56 Miss. 465; Stern v. Hampton, 73 Miss. 555, 19 So. 300.
This rule is approved in Gwin v. Fountain, 159 Miss. 619, 126 So. 18, 132 So. 559, although the court there held that the terms of the will vested the power in the trustee to bind the estate for the reasonable attorney's fee included therein, notwithstanding section 1734, cited above. No such case is presented by the petition and proof in the case at bar.
We are therefore of the opinion that no evidence was offered upon which the chancery court could make an order or decree binding the estate here involved for the attorney's fee claimed. The appellee, however, is not without his remedy, which is plainly marked out in the above decisions of this court.
Reversed and decree here for appellant.