Clements v. Fletcher

161 Ga. 21 | Ga. | 1925

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

James B. Clements as executor, as trustee, and individually, he in these three capacities being the plaintiff in error in No. 4634, moved to recommit this case to the auditor, upon twenty-three grounds. The trial judge overruled this motion, and to this ruling the movant excepted. So the first question for decision is, whether or not the court erred in refusing to recommit this case t,o the auditor. The first ground of this motion is based upon the fact that the report was not filed by the auditor within the time limited by the order of reference, which provided that the report should'be filed by the next term of the court, but provided that if for any reason the report was not filed by the next term of the court it could be filed thereafter. The second ground of the motion to recommit is based upon the contention that the judge was without power to insert in the order of reference this latter provision. These two grounds of the motion are without merit. The trial judge was authorized to pass the order of reference, with both of the above provisions therein. The contention that the lower court could pass no order of reference which would be of force and effect beyond the next succeeding term of the court is not based upon sound reasoning, and counsel for the movant has failed to produce any authority sustaining such contention. Interlocutory orders are binding upon the parties in a case throughout the litigation, unless they are set aside either by the lower court or by a higher court.

The third ground of the motion to recommit is founded upon the assertion that the second finding of fact is inconsistent with the finding of facts reported by the auditor in the eighth and ninth findings of fact. In the second finding of fact the auditor reported that “Considerable litigation arose concerning this estate, and that in point of time they divide themselves into two series.” He then sets out in detail the two series. In the eighth finding of fact the auditor found “that the executor performed no extra services in connection with the administration of this estate;” and in the ninth finding the auditor found that the regular commissions provided by law were reasonable compensation for the services rendered by the executor. All these things pan coexist in harmony. Properly construed, the eighth finding of fact means that the executor performed no extra services in the ordinary and regular administration of the estate, such as renting out the land, receiving the rents, collecting the debts, and in the distribution of the estate. This is made clear when these three findings of fact are considered in connection with the whole report, and especially with the finding of fact No. 41, in which the auditor found that the executor was entitled to compensation for expenses incurred and time expended in connection with the first series of the litigation referred to in the second finding of fact. It follows that the court below did not err in refusing to recommit the cause upon this ground.

The fourth ground of the motion to recommit is that the auditor finds in his twenty-sixth finding of fact that the executor paid $586.64 as premiums on his security bond, thus extending the same beyond May 9, 1920, but fails in his findings of law or fact, or his conclusions of law and fact, to either allow or disallow this expenditure, and thus renders it impossible to tell from the report whether this expenditure has been allowed to the executor or not. Standing alone, this criticism of this finding of fact would seem to have merit in it; but when considered in connection with the full report of the auditor, this exception is without merit. The executor filed in this ease his return which purported to include all receipts and collections made by him, and all expenditures incurred by him in the administration of this estate. In his finding of fact No. 42 the auditor found that with the exception of the collections referred to in findings of fact Nos. 38, 39, and 40, and with the exception of the expenses allowed the executor in his finding of fact No. 41, the executor’s return is a correct statement of the collections, receipts, and expenditures by the executor and of the dates thereof. This necessarily means that the auditor found that all credits claimed by the executor were correct. This report of the executor shows that he credited himself with the amounts specified in finding of fact No. 26. It follows that it appears from this return of the executor,, which is attached as an exhibit to the evidence, and which constitutes a part of the auditor’s report, that the executor received credit for these items. Furthermore, the decree of the judge in this case gives the executor credit for these items. Anyway, as the auditor gave the executor credit therefor, and as the judge in the final decree gives him credit therefor, any failure of the auditor in his finding of fact No. 26 to specifically allow these items to the executor would at most be a harmless error, which does not demand a recommittal of this ease to the auditor, and thus delay the winding up of this litigation.

In his finding of law No. 3 the auditor excluded evidence offered by the plaintiffs that the lands of the estate were worth the amount of the appraised value thereof in 1917, that from 1917 to 1921 the value of said lands increased double, and that since 1921 the value of said lands decreased one half, and that the lands would now bring about one third of what they would have brought in 1920. In his finding of fact No. 29 he found that the decreased value of these lands between 1920 and the time of the division of the same among the general legatees amounted to $23,504. The fifth ground of the motion to recommit is that the auditor erred in making his finding of fact No. 29, because it was based upon evidence which had been excluded by the auditor. The auditor further found in his report that the executor was not chargeable with this decreased value of these lands, and the trial judge approved this legal finding and conclusion. So, if we concede that the auditor erred in this finding of fact, for the reason assigned, it was an error which was not harmful to the executor, and did not require the recommittal of this case to the auditor.

The sixth ground of the motion to recommit is based upon the fact that the auditor found that the executor had collected $5,000 on a note of J. M. Willis due to the estate, and that this finding is without evidence to support it. Clearly this would furnish no ground to recommit the case to the auditor, but is a matter proper for exception. In fact the executor did except to this finding of fact, which the court approved, and in the final decree, with the consent of the plaintiffs, the court gave the executor credit for the amount so found against him by the auditor. So, if this finding was not based upon evidence, which is the case, and the'judge was right in so holding, then the executor is not hurt by such finding. On the contrary, if the finding is supported by the evidence, then the executor should be charged with this collection. Taking either horn of the dilemma, the executor was not legally injured or damaged; and for the reason that this was a matter for exception to and not for recommittal of the report, and that the executor in no event was hurt thereby, this ground of the motion to recommit should not have been sustained.

The seventh ground of the motion to recommit is that in the fifty-first finding of fact the auditor found that the executor collected from the Bank of Irwinville a time certificate of $2,163.72, belonging to the testator, and that this finding is without evidence to support it. If this finding of fact was not based upon evidence, this would furnish matter for exception to the finding, and not for recommitting the case to the auditor.

The eighth ground is that the auditor in his fifty-first finding of fact finds that some time between May 1, 1917, and February 1, 1919, the executor collected a note signed by himself for the' sum of $830.24, and that this item is charged as cash in the hands of the executor, when the uncontradicted evidence shows that this note had not been collected at the date of the hearing. This note is the executor’s own note. This ground of the motion to recommit is without merit, for two reasons, (1) that it should be charged to the executor as cash, he admitting that he is perfectly solvent; and (2) that if the auditor erred in making a finding not supported by evidence, this is a matter for exception and not for recommittal of the case to the auditor.

We deal with certain grounds to recommit together. These grounds are: (9) That in the 51st finding of fact the auditor finds that the aggregate collections by the executor, not including certain items therein referred to, from May 1, 1917, to February 1, 1919, aggregate $23)504.60, without specifying with what items the executor is charged, and without giving any information as to how he arrived at this aggregate. (10) That in said finding of fact the auditor finds that on February 1, 1919, the executor had in his hands from cash and collections $49,142.50, without giving the.items going to make up such amount, so that said finding is too indefinite, vague, and uncertain to put the. defendant on notice of what items he is charged with having 'collected, so that he can show that said aggregate is correct or incorrect. (11) That in said finding the auditoi credits the defendant with authorized expenditures from April 24, 1917, to February 1, 1919, amounting to the sum of $y,881.15, but fails to give the items constituting said amount, and without showing what expenditures made by the executor during said period are allowed or disallowed, so that said finding and report are indefinite, uncertain, and vague, and that it is impossible for the defendant to ascertain whether he has been correctly credited with the expenditures made by him; and that in said finding of fact the auditor credits the defendant with expenditures from February 1, 1919, to February 1, 1920, in the sum of $2,389.69; from February 1, 1920, to February 1, 1921, the defendant is credited with expenditures of $1,073.69; for the year from February 1; 1921, to February 1, 1922, he is credited with expenditures of $1,886.83; from February 1, 1922, to February 1, 1923, he is credited with expenditures of $l,00i.28; and from February 1, 1923, to December 17, 1923, with expenditures of $1,083.96; and that said findings and said report do not show what items were included in said expenditures, nor what expenditures were allowed or disallowed by the auditor, so that said report is so indefinite and uncertain that it is impossible for the defendant to ascertain from an examination of said report what expenditures made by the executor the auditor deems to be legal or illegal. (12) That at the conclusion of his finding of fact 'No. 52 the auditor finds that on December 17, 1923, there was a cash balance in the hands of the defendant of $29,697.75, and nowhere in said report does the auditor show what items make up said sum, so that it is impossible for the defendant to ascertain with what items he stands credited so as to leave said balance. (13) That in the 53d finding of fact the auditor finds the “aggregate interest earned on various items of collections made by the executor from February 1, 1918, to February 1, 1919, inclusive, at 4-1/2 per cent, per annum from the respective dates of collection on each item, $384.68,” which finding is too vague, uncertain, and indefinite to enable the defendant to ascertain what items he is charged with having collected, when he is charged with having collected them, the period of time for which interest was computed, or the amount of the collection upon which interest was computed. (14) That the report of the auditor is indefinite, and omits to pass upon all the issues and questions raised by the pleadings, in that said report fails to find or pass upon whether the expenditures for the respective amounts of $146.66 on May 15, 1920, $293.32 on June 6, 1922, and $146.66 on May 28, 1923, all payable to Turner & Dorminey, are found by the auditor to be unauthorized. (15) That the auditor omitted to find in his report whether the items referred to in the 26th finding of.fact were allowed or disallowed the executor. The 15th, 16th, 17th, 18th, and 19th grounds are but repetitions of some of the grounds above referred to.

It is true that the report of the auditor should shojv how he arrived at the gross amount which he finds the defendant indebted to the plaintiffs. Otherwise, it would be impossible for either party desiring to except to the gross amount so found, to ascertain from the report what items or claims are allowed or disallowed by the auditor. Greer v. Andrew, 133 Ga. 193 (65 S. E. 416). In cases of accounting, and 'in cases involving special issues, the general rule is that the report of the auditor should show in what way he arrived at his conclusion; in cases of accounting he should state the account at length, and in dealing with such special issues he should state the facts found by him, so that they will be intelligible without reference to the testimony; and where an auditor’s report fails to find all the facts or to cover all the issues involved, advantage should be taken of such failure by motion to recommit rather than by exception, which if sustained, would leave the matter where it started. Weldon v. Hudson, 120 Ga. 699 (48 S. E. 130). The report involved in this case is not subject to the infirmities above referred to. Pendente lite the executor filed with the court in this case a report of all collections made by him and all expenditures for’which he claimed credit. This report was introduced in evidence before the auditor. It is attached as an exhibit to the brief of evidence, and is made a part of the auditor’s report. The plaintiffs contested a few of the various items of expenditure for which the executor claimed credit. They sought to charge the executor with certain amounts not embraced as debits in his said report. The executor’s report shows the various items collected by him for the estate from May 1, 1917, to February 1, 1919. In this report the amount and date of each item collected are stated. To get the aggregate is a simple problem of addition. The auditor evidently added up these items, and reported the aggregate thereof in his 51st finding of fact as $23,504.60. In his report the executor admitted each - and every item of collection charged against him in this aggregate. The executor set up no contention that any of the items in this report between these two dates was incorrect. There was no controversy between the parties as to the collections thus reported by the executor. The items of these collections were numerous, and the most of them were small. To itemize them would make the report of the auditor, already large, much more voluminous. In view of these facts, we do not think it was necessary for the auditor to set out in his 51st finding of fact the various items composing the above aggregate of $23,504.60 with which he charged the executor.

The case should not have been recommitted to the auditor for lack of certainty in the finding, set out in the 52d finding of fact, that on February 1, 1919, the executor had in his hands “gross cash and collections $49,142.50,” without giving the items composing said aggregate. This amount is made up of the items embraced in the 51st finding of fact. The case should not be recommitted, as contended by the defendant in the 11th ground of the motion to recommit, because the items of the aggregate of expenditures allowed the defendant in the 52d finding of fact are not given. In the executor’s report the amount and date of each expenditure during these periods are given. The items of these expenditures which were disallowed by the auditor are set out in the 17th, 18th, 19th, and 20th greunds of his report. The amount and date of each of the disallowed items of expenditure are given in these grounds. The deduction of the disallowed items for any of the periods, from the collections made by the executor during such period, gives practically the total amount with which the auditor credits the executor during such period. It follows that the case should not have been recommitted on this ground.

The finding by the auditor, at the conclusion of the 51st finding of fact, that the executor had on hand, December 17, 1923, the cash balance of $29,697.79, without giving the items composing such balance, does not render it impossible for the defendant to ascertain with what items he is charged by the auditor, and with what items he stands credited by the auditor. For the reason hereinabove given, the report of the auditor sufficiently shows the debits: charged to the executor and the credits allowed him. For the same reason the aggregate of interest charged to the executor in the 53d finding of fact is not too vague, uncertain, and indefinite. The amounts collected by the executor during the period named are set out in his said report, and the auditor charges him with interest thereon. The auditor allowed the executor credit for the amounts mentioned in the 14th ground of the motion to recommit. In- his report the executor claimed credit for these amounts, and in the finding of the auditor he allowed the executor credit for all expenditures claimed by him, except such as were disallowed by the auditor. These items do not fall within those disallowed. What is said in dealing with the fourth ground of the motion to recommit is applicable to this ground.

We need not deal in detail with the 15th, 16th, 17th, and 18th grounds of the motion to recommit, for, as we have stated above, these grounds are but repetition of the 9th, 10th, and 11th grounds of the motion. What is said touching the last-mentioned ground is equally applicable to the 19th ground of the motion to recommit, each being based upon the same facts.

The 20th ground of the motion to recommit is that the auditor erroneously charged the executor with interest from February 1, 1919, to December 17, 1923, at the rate of seven per cent, per annum, when the executor earned interest of only 4-1/2 and 5 per cent, per annum, all of which had been reported. This furnishes ground for an exception of law, and does not require a recommittal of the ease to the auditor.

The 13th ground is that the auditor erroneously found, in his 6th conclusion of law and fact, that the payments made by the executor and set out in the findings of fact Nos. 18, 19, and 20 were incurred solely by the laches and refusal of the executor to distribute the estate, and were therefore improper charges against the estate. The error assigned is that some of the payments referred to in said finding were made by the executor in resisting a suit filed in the superior court of Ben Hill County, which court had no jurisdiction whatsoever of said cause, and as a matter of law it was the duty of the executor to resist the same. This would furnish matter for an exception of law, and would not require the re-committal of the ease to the auditor.

From the foregoing it appears that the judge did not err in refusing to recommit this ease to the auditor.

The court did not err in overruling the defendant’s exceptions to the auditor’s findings of law. The first exception of law is without merit, (1) because the ruling of the auditor therein set out was correct, and (2) because, if the auditor afterwards considered the evidence ruled out by him in his third finding of law, it was harmless, because both the auditor and the trial judge denied the claim of plaintiffs based on this evidence. The auditor did not err in ruling out the testimony set out in the 7th and 8th findings of law. If the auditor erred in admitting the testimony set out in his 10th finding of law, the same was harmless for the reason that the auditor did not charge the executor with any more rents than he actually received from the lands of the testator. If the auditor erred in admitting the testimony set out in his 11th finding of law, said ruling was harmless inasmuch as both the auditor and the judge rejected the claim of the plaintiffs based on this testimony. If the ruling of the judge in disapproving the finding of law set out in the 16th finding of law by the auditor was erroneous for any of the reasons assigned, the same was harmless and does not require a reversal. We think that the ruling of the auditor set out in his 19th finding of law was correct, and'that the defendant’s exception No. 7 thereto was without merit. It follows that the judgment below should not be reversed for overruling all of the defendant’s exceptions of law to the report of the auditor.

The executor filed exceptions to some of the auditor’s findings of fact. The trial judge overruled certain of these exceptions, and to this judgment the executor excepts. We deem it necessary to discuss only a few of these overruled exceptions.

. In his 39th finding of fact the auditor charged the executor with $5,000, the proceeds of a note which, the auditor found, was due by one Willis to the testator, and which the auditor found the executor had collected. In his 14th exception the executor challenged this finding of fact, upon the ground that it was without evidence to support it. This exception was well taken, but the overruling thereof does not require a reversal, because on the final hearing of the case, with the consent of the plaintiffs, the judge in the final decree relieved the executor of this charge. So the error in overruling this exception, and other exceptions making the same ruling, was effectually cured.

In his 8th finding of fact the auditor found that the executor had performed no extra services in connection with the administration of the estate, that the tenants to whom he rented the lands of the estate brought the rent to him without extra service on his part, and that the legatees divided the lands in kind among themselves without any service on his part, except his approval of the division. To this finding the executor excepted upon the grounds that it was without evidence to support it, and that the uneontradicted evidence shows that the executor did perform extra services. The auditor does not seem to have meant by this finding that the executor had performed no extra services in connection with the administration of this estate. What he seems to have meant is that the executor performed no extra services in the ordinary and regular administration of this estate. This appears from his 41st finding of fact, in which he found that the executor had incurred personal expenses in connection with the first' series of litigation, and with the adjustment of the income tax demanded by the Federal government, for which he had not been reimbursed. In this finding the auditor sets- out the amount of these expenses, including compensation for the executor for the time consumed by him in connection with this litigation. Compensation for this extra service was allowed the executor. For this reason it appears that the auditor in the above finding, that the executor had rendered no extra services, meant that he had rendered no such services in the ordinary and regular administration of the estate. But, conceding that the auditor meant to find that the executor had rendered no services in extraordinary matters connected with the administration of the estate, the judgment disapproving the exception to this finding should not be reversed, because the auditor allowed the executor compensation for all extra service which was authorized and justified by the evidence. It may be conceded that it is inferable from the facts that the executor rendered such services; but such inference will not justify the grant of such compensation. The nature, character, extent, and value of the extra services must be satisfactorily shown. The evidence touching the rendition of extra services by the executor is set out in extenso in the statement of facts. ’An examination of this evidence fails to show any data which would authorize the finding of compensation for such services, other than was found by the auditor in his 41st finding of fact. But it may be said that the executor applied to the ordinary for compensation for these services, that the ordinary, after hearing the executor’s application for such compensation and his sworn evidence in support thereof, passed an order allowing him $6,000 as extra compensation, and that the order of the Ordinary, although not conclusive on the parties in interest (Code 1910, § 4067), furnishes at least prima facie evidence that the executor was entitled to that amount. Conceding, but not deciding, that the ordinal had jurisdiction of this matter after the superior court, as a court of equity, had taken jurisdiction over the settlement of the accounts of this executor (Code 1910, § 4075), the burden would be upon the party attacking such order to show that the allowance Avas improperly made. Hosher v. Fitzpatrick, 146 Ga. 525 (91 S. E. 780). In an amendment to his answer to the petition in this case the executor sought to recover extra compensation. In this amendment he made practically the same allegations to establish his right to such compensation as he did in his petition to the ordinary for the alloAvance thereof. He prayed to be allowed as extra compensation, in addition to the regular compensation and special commissions allowed by law, the sum of $6,000, that he be allowed the sum of $2,184 for renting and collecting the rents for the lands of the estate, these rents amounting to $4,379.35, and the further sum of $437.95 for distributing the lands belonging to the estate. In support of his claim for extra compensation he was sworn as a witness before the auditor, and he undertook to narrate the facts upon which his claim for these large amounts of extra compensation was based. It can fairly be presumed that he stated the facts most favorably to himself, in order to establish his claim. His testimony shows that the order of the ordinary alloAving him $6,000 as extra compensation was improvidently granted. In his testimony he states no facts and gives no data which support the finding of the ordinary and sustain his claim for the extra compensation sought in the above amendment to his answer. In view of this conclusion, any error committed by the auditor in this finding of fact, and by the trial judge in disallowing the executor’s exception thereto, does not require a reversal of the judgment. The executor was fully heard upon his claim for compensation for extra services; and for the reasons hereinabove given he failed to establish his right to any more compensation for such services than was allowed him by the auditor.

In the 17th finding of fact the auditor found that all of the litigation brought by the legatees against the executor in 1921 and subsequently thereto was for the purpose of obtaining distribution of the estate, and was caused by the refusal of the executor to distribute the estate and make an accounting therefor. To this finding the executor excepts upon the ground that the same is contrary to and without evidence to support it, and because the petitions filed by the legatees in Ben Hill County and Irwin County show that said litigation was brought for the purpose of removing the executor and having a receiver appointed to take charge of and administer the estate. In his 6th conclusion of law and fact the auditor found that the payments made by the executor to his attorneys for services in this case, amounting to $2,000, to the clerk of the superior court for costs amounting to $116.93, and to his attorneys for expenses, amounting to $15.10, were incurred solely by reason of the laches and refusal of the executor to distribute the estate, that said payments were improper charges against the estate, and that the executor should not be given credit for them. The executor excepted to this finding, on the ground that it was without evidence to support it, that the executor had a right to employ counsel to protect the estate against unfounded suits, and that the items of costs referred to were incurred by the defendant in appealing certain litigation from the superior court to the Supreme Court, one of which was reversed. It is earnestly insisted by counsel for the executor that these payments to his attorneys are proper charges against the estate, and that the same should be allowed as credits to the executor. The record discloses that the plaintiffs brought a similar suit to the present one, in Ben Hill superior court, against the executor and his bondsman, for the accomplishment of the same purposes as those sought in the present suit. That suit was dismissed upon demurrer. The evidence fails to disclose what part, if any, of the above payments were paid by the executor to his attorneys for services in the suit in Ben Hill superior court. On the contrary, it appears that these payments were made for services rendered in the present ease. The auditor and the judge were authorized to find that the litigation, which the auditor denominates as the second series of litigation, was brought about solely by reason of the laches and failure of the executor to distribute the estate as he should have done. The purpose of the litigation, embraced in this series, was to secure distribution of the estate in accordance with the terms of the will of the testator. It is true that to accomplish this purpose the plaintiffs sought to have the executor removed and a receiver appointed; and it is likewise true that the trial court removed the executor and appointed a receiver, and that this action of the judge was reversed. Clements v. Fletcher, 155 Ga. 802 (118 S. E. 201). In defending this suit the executor not only contested his removal and the appointment of a receiver, but he denied the right of the plaintiffs to a settlement and accounting, and sought to defeat the same by filing a demurrer to their petition, which was overruled by the trial court, and the judgment overruling it was affirmed by this court. Clements v. Fletcher, 154 Ga. 386 (114 S. E. 637).

It is insisted by the executor that it was proper for him to employ counsel to resist the application of the plaintiffs for his removal and for the appointment of a receiver, when such application was unfounded, and to charge-to the estate payments to counsel for such services. The purpose of supplying executors with legal advice is for the protection of the estate he represents. The object is not to extricate him from difficulties due to his own fault or misconduct. Ross v. Battle, 113 Ga. 742 (39 S. E. 287). Where there is no actual misconduct in the administration, but only a charge of it, the executor representing all the legatees should be allowed a reasonable amount to retain counsel in defending an unjust charge. Armstrong v. Boyd, 140 Ga. 710 (79 S. E. 780). The auditor and the trial judge were authorized to'find from the evidence that the present suit was brought about by the fault and neglect of the executor in properly administering this estate. The main purpose of this suit was for an accounting and settlement. To accomplish this purpose the legatees sought to have the executor removed and a receiver appointed. If the executor had fought these features of the case alone, and had employed counsel for this purpose, he might well be entitled to credit for payments made to counsel for services rendered to accomplish this object; but the executor did not offer to account and settle, but on the contrary resisted- the efforts of the legatees to secure an accounting and settlement. Certainly, in view of this situation, he should not be allowed expenditures for the services of his counsel in resisting the efforts of the legatees to secure an accounting and settlement. In the absence of evidence showing the value of the services of counsel to resist his removal, and to prevent the appointment of a receiver, no allowance should be allowed to the executor for payments for such services.

The other exceptions of the executor to the findings of fact by the auditor, and to his conclusions of law and fact, are without merit. In view of the above rulings, the trial judge did not err in any of his rulings touching the exceptions of the executor to the findings of the auditor, and in' the final decree granted in this case, so far as the executor is concerned.; and the judgment of the court below should be affirmed, so far as the executor is concerned.

This brings us to consider the assignments of error complained of in the bill of exceptions brought by the plaintiffs. The plaintiffs contend that they are entitled to recover from the executor damages arising from a decline in the value of the lands devised them by testator, between the time when the executor should have given them these lands, and the time when he assented to the division thereof and put the legatees in possession. We do not think that the legatees are entitled to recover these damages.

In the next place, the legatees assert that the executor has forfeited all right to compensation, by his failure to make annual returns and by his conduct in the administration of this estate. It is true that where an executor fails to make his annual returns, as required by section 3992 of the Code, as amended by the act of 1920 (Ga. Laws 1920, p. 79), he forfeits- all commissions for transactions during the year within which no return is made. Civil Code, § 4069; Lane v. Tarver, 153 Ga. 570, 584 (113 S. E. 452). By a special order, entered on the minutes, an ordinary may relieve the' executor from such forfeiture. Doster v. Arnold, 60 Ga. 316; McBride v. Hunter, 64 Ga. 655; Lane v. Tarver, supra; Civil Code, § 4069. In this case the executor procured such order. Therefore he was relieved from the forfeiture of compensation by reason of his failure to make annual returns. It can not be said as a matter of law that he forfeited all compensation by reason'of his neglect or misconduct in the administration of this.estate. Under the evidence and facts of the case, it was a question of fact to be determined in the first instance by the auditor, and in the second instance upon exception to such finding by the judge. Adair v. St. Amand, 136 Ga. 1 (7) (70 S. E. 578). So while the auditor found that the executor had forfeited his compensation, we can not say that the judge erred in approving an exception to this finding of fact, and upon hearing the case, which was submitted to him without the intervention of a jury, in holding that the executor had not forfeited all compensation. It does not appear that the final decree allows the executor any commissions upon the lands which were distributed in kind; and under the facts in this case he should not receive any compensation for this distribution of these lands.

The executor neglected, in his exceptions to the auditor’s report on matters of fact, to set forth in connection with each exception the evidence necessary to be considered in passing thereon, or to point out the same by proper reference, or to attach it as exhibits to his exceptions. Counsel for plaintiffs moved to dismiss his exceptions of fact, for'this reason. Thereupon the executor amended his exceptions so as to meet this objection. To the allowance of this amendment counsel for plaintiffs objected, but the court overruled their objection and allowed the amendment. To this ruling the plaintiffs excepted. All parties may, at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or substance, provided there is enough in the pleadings to amend by. Civil Code, § 5681. In view of this broad and liberal provision, we think that where a party files exceptions to an auditor’s report, but the excepting party fails to set out or refer to the evidence in such exception, or to attach it as an exhibit, such exception can be amended to meet this defect. Whether new grounds of exception could be added is not now for decision. See Sizer v. Melton, 129 Ga. 143 (58 S. E. 1055); Faucett v. Rogers, 152 Ga. 168 (7) (108 S. E. 798).

In view of the foregoing rulings, the judgment on the writ of error brought by the plaintiffs should be affirmed.

Judgment affirmed.

All the Justices concur, except Russell, C. J., and Athinson, J., dissenting.

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Dissenting Opinion

Atkinson, J.,

dissents from the ruling announced in the first division, and subdivision (e) of the third division, of the majority opinion. This dissent, in so far as it relates to the ruling announced in the first division, is a concurrence in the dissent of Russell, C. J., relating to the assignment of error on the judgment denying the motion to recommit the case to the auditor.