Summary
In Clarksdale Hospital v. Wallis, 187 Miss. 834, 193 So. 627 (1940), where (legal) services were rendered for the sole benefit of an individual, or group of individuals, interested in an estate, as against the others interested, such an allowance (of attorneys' fees) was held to be unauthorized.
Summary of this case from McMurtray v. Deposit Guaranty Bank and Trust Co.Opinion
No. 34045.
February 12, 1940. Suggestion of Error Overruled March 25, 1940.
1. EXECUTORS AND ADMINISTRATORS.
Attorney's fees incurred by personal representative in administration of estate in representative's custody are representative's personal obligations, for which he may be reimbursed if court is of opinion that services were necessary and were rendered in good faith (Code 1930, sec. 1734).
2. EXECUTORS AND ADMINISTRATORS.
An estate is not liable for attorney's fees for attorney's services rendered for sole benefit of individual, or group of individuals, interested in estate, as against the others interested (Code 1930, sec. 1734).
3. EXECUTORS AND ADMINISTRATORS.
A hospital, which established its claim to bequest which was contested by executor and certain of devisees and legatees, was not entitled to charge the whole estate with reasonable attorney's fees necessarily incurred in defending the contest, notwithstanding that it was to the interest of all concerned that the court pass on the validity of the bequest (Code 1930, secs. 1734, 3564, 3565; Const. 1890, secs. 269, 270).
4. WILLS.
Punitive damages are not allowable in litigation involving validity of bequest.
APPEAL from the chancery court of Coahoma county; HON. R.E. JACKSON, Chancellor.
Vincent J. Brocato and E.W. Smith, both of Clarksdale, for appellant.
In the instant case, it is uncontradicted that Mrs. Johnson intended that the Clarksdale Hospital should have the full amount of its specific bequest. Through no fault of this appellant, and due to agencies and factors to whom it protested, and over whom it had no influence or control, and in order that the will of their benefactor might be effectuated, it was forced to secure the services of an attorney.
He must be paid. Who then should be forced to bear this added expense and consequent depletion of the specific bequest? If the proponent, the will of the testatrix is defeated for the bequest is diminished proportionately thereby. If the estate, the will of the testatrix lives in death, for the residuum becomes the primary fund for the discharge of expenses. This is as intended by the testatrix.
Sawyer v. Baldwin, 37 Mass. 378; In re Eatley's will, 89 A. 776; In re Gordon's will, 111 A. 610; Succession of Beauregard, 49 La. Ann. 250, 22 So. 348; Singer v. Taylor, 91 Kan. 190, 137 P. 931; Smith et al. v. Haire et al., 197 S.W. 678, Ann. Cas., 1916D, 529; Everson v. Hearne (Neb.), 131 N.W. 1130; Beer et al. v. Squires et al. (Conn.), 129 A. 382; Cooke v. Womans College of Pa., 82 N.J. Eq. 179, 87 A. 131; McCormic v. Hall et al., 337 Ill. 332, 168 N.E. 900; Moore v. Alden, 80 Me. 301, 6 Am. St. Rep. 203; Lassiter et ux. v. Travis et ux., 39 S.W. 226.
The allowance of such costs, attorney's fee and expenses in such case as this is inherent in a court of equity and independent of statutory enactment. It is grounded in the theorem oft repeated that an ambiguity created by the testatrix should be removed by the residuary estate of such testatrix, if such exists, and not at the expense of the legacy.
An immeasurable stronger cause exists for the allowance of counsel fees in instances to successful proponents. In such instances the proponents seeks to uphold and validate the provision of the will. It is their purpose that the intention of the testator should control and be given full force and effect. Why, therefore, should a person successfully propounding the provisions of a will be forced to pay for the privilege of seeing the will of the testator effectuate after her death?
As in the instant case, upon the shoulders of counsel for proponent has fallen largely the task of establishing this provision of the will of Mrs. Johnson. Upon the shoulders of counsel for proponent has fallen the brunt of the removal of this ambiguity of the will. This ambiguity, if such exists, was created by the testatrix herself. Yet the executor hesitated to follow the mandate of the will and there was injected controversial issues by the executor and certain devisees to the construction thereof. It is certainly only equitable and fair that the provisions of the will should be given full force and effect and that those espousing the will and its provisions should not be forced to pay for the privilege of seeing that the will of the testatrix should live after her death.
Guerin v. Guerin, 110 N.E. 402; Alford v. Bennett, 279 Ill. 375, 117 N.E. 89; Haight v. Royce et al., 274 Ill. 162, 113 N.E. 71; Ingraham v. Ingraham, 169 Ill. 432, 48 N.E. 561, 49 N.E. 320; Womens' Union Missionary Society v. Mead, 131 Ill. 33, 23 N.E. 603; Lombard v. Witbeck, 173 Ill. 396, 51 N.E. 61; Merill v. Winchester, 120 Me. 203, 113 A. 261; Luttgen v. Tiffany et al., 95 A. 847; Bioren v. Nesler et al., 76 N.J. 576, 74 A. 791.
The following cases support the doctrine that proponents are entitled to allowance of counsel fees, court costs and expenses incurred.
In re Coleman's Will, 88 N.J. Eq. 284, 103 A. 521; In re Winston's Will, 172 N.C. 270, 90 S.E. 201; In re Johnson's Will, 100 Or. 142, 196 P. 1115; In re Moore's Will, 114 Or. 444, 236 P. 265; McMillan, Executor, v. McElroy, 186 Ky. 644, 217 S.W. 927; Hilyard v. Wood, 71 N.J. Eq. 214, 63 A. 7; Miller v. Von Schwartzenstein, 64 N.Y.S. 475; In re Simon's Will, 55 Conn. 239, 11 A. 36; Reed v. Cramer, 118 Me. 317, 108 A. 82; In re Berthol's Estate, 163 Cal. 343, 125 P. 750; In re Roarke's Estate, 8 Ariz. 16, 68 P. 527.
There seems to be no reported decision in Mississippi affecting the question presented, and only one case insofar as we have been able to find in which such an issue was drawn. That case is the case of Guess v. Strahan, 106 Miss. 1, 63 So. 313, in which the court refused to allow counsel fees to unsuccessful contestants on the ground that no ambiguities existed in the will, there was no bona fide and actual controversy between the parties and no services were rendered the executor of the estate. The syllabus in that case is to the effect: "Where there is nothing ambiguous in a will and the executor was perfectly willing to carry out its provisions and has not asked for its construction and no difference has arisen between the beneficiaries as to its construction, the court will not entertain a bill to construe such will, nor allow petitioner's attorney fees to be taxed against the estate," and thus, impliedly recognizes the doctrine that had there been an actual and bona fide contest and a serious controversy, had any ambiguities obtained in the will, had any services been rendered which materially benefited the estate, then in that instance the court would have entertained a motion for the allowance thereof.
Brewer Sisson, Tom T. Ross, Roberson Luckett, and Maynard, Fitzgerald Maynard, all of Clarksdale, for appellees.
Attorney's fees for services in connection with an estate are not debts of the estate.
Clopton v. Gholson, 53 Miss. 466; Code of 1930, Sec. 1734; Reedy v. Allen, 179 So. 569, 181 Miss. 471.
Attorneys' fees are not recoverable unless facts are of such gross or wilful wrong as to justify the infliction of punitive damages.
Cooper v. U.S.F. G. Co. (Miss.), 188 So. 6.
No allowance may be made out of the estate of a deceased person for the services of an attorney not employed by the personal representative of the estate, where the services were rendered for the sole benefit of an individual interested in the estate.
79 A.L.R. 522; Arell v. Marsteller, 2 Cranch, C.C. 11, Fed. Cas. No. 514; Hearrin v. Savage, 16 Ala. 286; Pinckard v. Pinckard, 24 Ala. 250; Parker v. Parker, 99 Ala. 239, 42 Am. St. Rep. 48, 13 So. 520; Foster v. Foster, 126 Ala. 257, 28 So. 624; Coker v. Coker, 208 Ala. 239, 94 So. 308; City Bank T. Co. v. McCaa, 213 Ala. 579, 105 So. 669; Dent. v. Foy, 214 Ala. 243, 107 So. 210; Evatt v. Miller, 114 Ark. 84, L.R.A. 1916C, 759, 169 S.W. 817; McPaxton v. Dickson, 15 Ark. 97; Paget v. Brogan, 67 Ark. 522, 55 S.W. 938; ReWalden, 174 Cal. 776, 164 P. 639; Re Heeney, 3 Cal.App. 548, 86 P. 842; Re Lux, 134 Cal. 3, 66 P. 30; Re Currier, 19 Colo. App. 245, 74 P. 340; Simmons v. Hubbard, 50 Conn. 574; Re Simmons, 55 Conn. 239, 11 A. 36; Re Officer, 122 Iowa 553, 98 N.W. 314; Re Colburn, 186 Iowa 590, 173 N.W. 35; Dougherty v. Cummings, 20 Ky. L. Rep. 1948, 50 S.W. 551; Bailey v. Barclay, 109 Ky. 636, 60 S.W. 377; Girty v. Girty, 180 Ky. 786, 203 S.W. 730; McGoodwin v. Shelby, 181 Ky. 230, 204 S.W. 171, 182 Ky. 377, 206 S.W. 625; Sims v. Birdsong, 22 Ky. L. Rep. 1049, 59 S.W. 749; Hood v. Maxwell, 23 Ky. L. Rep. 1791, 66 S.W. 276; Clarke v. Garrison, 25 Ky. L. Rep. 1999, 79 S.W. 240; Hughes's Succession, 14 La. Ann. 876; Linton v. Moore, 4 La. 434; Delano's Succession, 125 La. 869, 51 So. 1019; Flater v. Weaver, 108 Md. 668, 71 A. 309; Bigelow v. Morong, 103 Mass. 287; Mulloney v. Barnes, 266 Mass. 50, 164 N.E. 917; Runkle v. Smith, 90 N.J. Eq. 478, 106 A. 474; Re Larrabee, 98 N.J. Eq. 655, 130 A. 195; Re Fulper, 99 N.J. Eq. 293, 132 A. 834; Lee v. Lee, 39 Barb. 172; Osborne v. McAlpine, 4 Redf. 1; Re Meeker, 9 Daly 556; Re Smith, 1 Misc. 269, 22 N.Y. Supp. 1067; Re Kreidler, 68 Misc. 412, 7 Mills 559, 124 N.Y. Supp. 628; Re Vorndran, 132 Misc. 611, 230 N.Y. Supp. 326; Re Nockin, 15 N.Y.S.R. 731; Re Hartmann, 133 Misc. 739, 232 N Y Supp. 670; Gunning v. Lockman, 3 Redf. 273, 4 Abb. N.C. 173; Patterson v. Miller, 72 N.C. 516; Alexander v. Alexander, 120 N.C. 472, 27 S.E. 121; Re Gratton, 136 Or. 224, 298 P. 231, 79 A.L.R. 517; Fields v. Fields (Ore.), 7 P.2d 975; Stephens's Appeal, 56 Pa. 409; Harrison's Estate, 221 Pa. 508, 70 A. 827; McCloskey's Estate, 12 Phila. 74, 35 Phila. Leg. Int. 153; Moore's Estate, 8 Pa. Co. Ct. 447; Di Orio v. Cantone, 49 R.I. 452, 144 A. 148.
No allowance may be made for services which were not beneficial to the estate as a whole, but were rendered for, and inured only to, the benefit of Clarksdale Hospital.
The general rule is that the right of an attorney at law to demand payment for his services depends on the fact of employment.
5 Am. Jur., par. 154, Attorneys at Law.
The general rule has generally been modified to permit allowances to attorneys whose services redounded to benefit of all persons interested in the estate and were beneficial to the estate.
79 A.L.R. 523, 525.
This modification of the general rule apparently does not prevail in Mississippi.
Rives v. Patty, 74 Miss. 381, 20 So. 862.
This modification of the general rule is limited to allowances for services which were beneficial to the whole class. It is improper to allow fees to attorneys whose services were rendered for, and inured only to, the benefit of a single individual in the class.
Pinckard v. Pinckard, 24 Ala. 250; Coker v. Coker, 208 Ala. 239, 94 So. 308; City Bank Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Dent v. Foy, 214 Ala. 243, 107 So. 210; Evatt v. Miller, 114 Ark. 84, L.R.A. 1916C, 759, 169 S.W. 817; McPaxton v. Dickson, 15 Ark. 97; Paget v. Brogan, 67 Ark. 522, 55 S.W. 938; Re Walden, 174 Cal. 776, 164 P. 639; Re Heeney, 3 Cal.App. 548, 86 P. 842; Re Lux, 134 Cal. 3, 66 P. 30; Simmons v. Hubbard, 50 Conn. 574; Re Simmons, 55 Conn. 239, 11 A. 36; Re Colburn, 186 Iowa 590, 173 N.W. 35; Bailey v. Barclay, 109 Ky. 636, 60 S.W. 377; Hood v. Maxwell, 23 Ky. L. Rep. 1791, 66 S.W. 276; Clarke v. Garrison, 25 Ky. L. Rep. 1999, 79 S.W. 240; Hughes's Succession, 14 La. Ann. 876; Delano's Succession, 125 La. 869, 51 So. 1019; Duplantier v. Michoud, 19 La. Ann. 530; Mulloney v. Barnes, 266 Mass. 50, 164 N.E. 917; Re Fulper, 99 N.J. Eq. 293, 132 A. 834; Osborne v. McAlpine, 4 Redf. 1; Re Meeker, 9 Daly 556; Re Smith, 1 Misc. 269, 22 N.Y. Supp. 1067; Re Welling, 51 App. Div. 355, 64 N.Y. Supp. 1025, 53 App. Div. 639, 65 N.Y. Supp. 1060; Re Kreidler, 68 Misc. 412, 7 Mills 559, 124 N Y Supp. 628; Re Vorndran, 132 Misc. 611, 230 N. Y. Supp. 326; Re Nockin, 15 N.Y.S.R. 731; Re Hartmann, 133 Misc. 739, 232 N.Y. Supp. 670; Re Gratton, 136 Or. 224, 298 P. 231, 79 A.L.R. 517; Stephens's Appeal, 56 Pa. 409; Di Orio v. Cantone, 49 R.I. 452, 144 A. 148; Dunsing v. Lockman, 3 Redf. 273, 4 Abb. N.C. 173.
No allowances may be made out of an estate for services of attorneys employed by persons claiming a share therein, in litigation between themselves to determine their shares.
Re Colburn, 186 Iowa 590, 173 N.W. 35; Dent v. Foy, 214 Ala. 243, 107 So. 210; Evatt v. Miller, 114 Ark. 84, L.R.A. 1916C, 759, 169 S.W. 817; Hughes's Succession, 14 La. Ann. 876; Lee v. Lee, 39 Barb. 172; Re Walden, 174 Cal. 776, 164 P. 639.
Argued orally by Vincent J. Brocato, for appellant, and by Tom T. Ross and Wm. H. Maynard, for appellee.
The question involved is whether a legatee, under a will, whose claim to the legacy is unsuccessfully contested by the executor and some of the other legatees and devisees, is entitled to charge the whole estate with a reasonable attorney's fee necessarily incurred in defending such contest.
Mrs. Martha (Mattie) Johnson died testate. In her will, she bequeathed to the Clarksdale Hospital the sum of $30,000. Several other legatees and also devisees were named in the will. The hospital's claim for its legacy was contested by the executor and certain of the devisees and legatees upon the ground that the will in that respect violated Sections 269 and 270 of the Constitution of 1890, and Sections 3564 and 3565 of the Code of 1930, commonly known as Mortmain and Constitutional Provisions. The result of the contest was a decree in favor of the hospital. Thereupon, the executor paid the hospital the $30,000. In defense of its claim, the hospital incurred and paid an attorney's fee of $3,000, which was reasonable and necessary. It now seeks reimbursement for this amount from the entire estate. The chancellor disallowed it. Hence, this appeal by the hospital.
Section 1734 of the Code of 1930 is in this language: "In annual and final settlements, the executor, administrator or guardian shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate if the court be of the opinion that the services were proper and rendered in good faith; provided, however, that where the executor, administrator or guardian acts also as attorney, the court may allow such executor, administrator or guardian credit for his reasonable compensation as attorney in lieu of his compensation as executor, administrator or guardian."
Attorneys fees incurred by the personal representative in the administration of an estate in his custody, are, under Section 1734 of the Code of 1930, his personal obligations, for which he may be reimbursed if the court be of the opinion that the services were necessary and rendered in good faith. Reedy v. Allen, 181 Miss. 471, 179 So. 569; Clopton v. Gholson, 53 Miss. 466. Where the services were rendered for the sole benefit of an individual, or group of individuals, interested in the estate, as against the others interested, such an allowance is unauthorized. See copious annotations to Williams, Executor v. Gratton, as reported in 136 Or. 224, 298 P. 231, 79 A.L.R. 517, Annotations page 522, et seq. The hospital's claim was against the interest of all other legatees and devisees under the will. Its successful termination resulted in decreasing their claims.
It is argued on behalf of the hospital that it was to the interest of all concerned that the court pass on the validity of the bequest to it, which involved the construction of the will. In a sense, that is true, but it does not follow as a matter of course that the costs are to come out of the whole estate. Putting it differently, the position of the hospital is that it has the right to make its unsuccessful adversaries pay the attorney's fee incurred by it in bringing about their defeat. That would be in the nature of punitive damages, which is not allowable in a litigation of this character.
Affirmed.