*1 Fountain et Gwin v. al. 20, 1930.)
(Division B. Jan.
[126 28082.] So. 18. No.
(Feb. 23, 1931.) [132 28082.] 559. So. No. *4 opinion,
For 126 So. former see 18. Johnston, S. Jack- Rosenthal, Means Greenwood, Williams, Cutrer E. Clarks- & Smith and G. all of son, appellant. for dale, *8 & E. all Williams, Clarksdale,
Gutrer Smith and G. Johnston, appellant. and Means for Greenwood, *10 appellees. Gardner, Gardner, Odom & of Greenwood, for *15 orally by Argued Johnston, G. E. Williams: Means appellant, for for T. and A. F. Gardner, H. Odom appellees. opinion
Anderson, J., of the delivered the court. appeal chancery an Leflore This is from the court of county setting vacating a from a decree former aside and attorney’s allowing appellant decree of1 court an twenty-five against fee of thousand dollars estate W. T. Fountain, in the matter of adminis deceased, recovery awarding against tration a estate, forty-two appellant appellees in favor of in the sum of thirty-eight fifty-one thousand six hundred dollars and appellant prosecutes ap cents. From that this decree *16 peal.
638
Appellant assigns argues grounds and several f'or re- versal of the The conclusion we decree. have reached necessary only following: it renders decide the setting Whether the in former court erred aside its de- allowing attorney’s appellant twenty-five cree an fee of thousand dollars him in for services rendered the ad- ministration of Sr.; the estate of W. T. whether Fountain, consolidating' the court erred in court the case circuit' chancery trying with court the both as one case, and against ap- cause; whether itemized sworn, the account pellant properly in W. favor of T. Fountain, was Sr., appellant’s liability in admitted and evidence, therefor excluding ¡established; whether in the court erred by appellant purpose showing evidence for the offered legal the value of W. T. his services to estate during Fountain, Sr., administration both execu- questions tors. will in We consider and decide these doing stated, order in so will the material set out question out of facts which arises. each allowing appellant The court that the held decree an attorney’s twenty-five fee of dollars for his thousand T. Fountain, services rendered estate of W. dur Sr., ing executorship Wright, E. void, C. was because (section violative of section of 1906 2131, Code 1875, Hemingway’s 1927), principles Code of declared Clopton Phelps, 466; in v. 53 v. Miss. Norton Gholson, 54 467; v. Potts, 346; Miss. 56 Miss. Parham v. Hines Hampton, 465; 56 Miss. Stern v. 73 Stith, Miss. 19 555, Myer, 300; So. Howell Miss. So. 771, 233. v. provides The as follows: statute settlements, “In annual and final the executor or ad- credit for ministrator shall be entitled to such reasonable paid may attorney he sums for services of an as have management in behalf estate if the or court proper opinion be the services were and rendered good faith.”
639 appellant’s for fee his services court held that The personal executorship Wright lia- during awas of the bility decree rendered of the and therefore the executor, fixing Wright, and the the fee after death of the executor, making charge upon a It was it was void. estate, in the above to that contracted held by debts cases referred only binding as are executors administrators and personal obligations, com- estate and cannot bind the by except specially mitted to authorized where them, incurred statute, and that of counsel fees this was true legal management for in the of estate. services (section [section 1875, The 2131, statute of Code 1927]) passed Hemingway’s in 1882. It was Code merely declaratory Clopton v. of the law. was common supra. Among things, in it was held other Gholson, that case a a lien on the trust that, trustee has while expenses legally in- estate his hands for costs and by privilege him curred does in its this administration, employed agents by agents not to extend him—that such reimbursement; must look that, alone to the trustee for paid responsible while become to the trustee who or had persons legitimately employed by him in the business may the estate retain the his own for reimburse- assets by yet, parties employed if ment, he not do does so, ordinarily powerless any against him are claim to assert the estate. The said: court
“If im the trust was liable to be attacked and estate pleaded by every trustee, person who dealt with the had litigate to nature, and forced them in the value and with alleged beneficial character to the services estate by them to he have been it would involved rendered, up complications, perhaps be swallowed or endless injured seriously by The accumulations costs. persons compels look to trustee therefore, such law, they against they whom have dealt, with whom alone legal recognized a or demand. If is enforced their claim presents proper
against he it to the him, tribunal, litigate will with him the benéfieiaries question the estate propriety against them of1 allowance of the its ’’ selves. attorneys claim fees for That a for case involved in the administra- services rendered executors their When the claim tion estate in their hands. was presented both of execu- allowance, to the for court an- and an administrator with the will tors died, had appointed. The estate nexed had been court held that the *18 attorneys’ a fees, not liable for the but that it was was liability the executors. apply question principles
The facts Do these to the is, question upon proper of this And the case? this turns the T. died construction of will of W. Fountain, Sr., who leaving a 26, testament, on October last will and 1919, probated 1919. heirs which on His sole 6, was November legatees ap- under his will were the and devisees and pellees sons, three White- in this his and Ella case, wife N. head and M. W. Fountain and Fountain, W. Fountain, died, Sr., T. When Fountain, Fountain, W. Jr. W. T. an and other two son, adult, his W. M. the Fountain, was consisted minors. The of the decedent sons were estate exclusively large in the almost of a mercantile business city department store—the value Greenwood—a approximately dollars. which hundred thousand was five only property lot, a house and The he owned was other something formerly like of the value of residence, his to his wife. The five thousand was willed dollars, which three willed to the wife the mercantile business was and Wright in E. named share and share alike. C. was sons, outstanding pro- Two the will executor and trustee. as that mercantile business visions of the were the .will uninterrupted; that the G. executor, and should continue power authority Wright, the E. should have same and manage carry the to and had on business as testator in his lifetime. provided: “That paragraph 4 of it was will
In which it in in the mánner shall be carried on business hereby I au- and me, heretofore has been conducted empower my do;” to and' so said executor thorize and provided paragraph.5 “shall it the executor in that was authority carry my plenary power said to on have and things any dis- in his do and which business and to all purpose may necessary proper that cretion be or for (which final) which will in be full his discretion and shall promote busi- be calculated best to the interests judgment, according ness;” and to his executor, authority power to have incur debts should any full to and any purpose, and amount, in connection with for growth busi- mercantile conduct, and continuance, may pledge “my ness; sell, end said executor any my dispose or deal or or all of of, otherwise with property, (except personal” real the former home- wife) he, stead to his “in such his devised as manner may proper.” discretion, think paragraph
In au- of the was the executor will, thought if, in con- thorized, his he it discretion, would be to the of the ducive organize mercantile business to interests corporation purpose purchasing
a for owning authority with him to business, *19 corpora- transfer the and all to the business its assets organized, corporation tion be- so in such to the stock long children; to the testator’s wife and but that dur- ing executorship Wright the of C. E. the stock should by be controlled and the and other executor such voted person persons might purpose; name or as he for that Wright, executor, but that should at all have the times policy corporation, control, direct the of “and and the personnel management;” during the select of its that executorship Wright belonging of the the shares of stock pledged to his wife and children not should be or dis- posed by Wright; of them without the consent corporation organized
the fetockin the is- so should he Wright, sued to the executor,. trustee for the testator’s as (A corporation accordingly wife and children. was or- ganized.) provided Paragraph 8 of E. the will that O. Wright, authority resign the should the to executor, have executorship, his and turn the mercantile business over to the or sons, testator’s or some one more of them, judgment, when the executor should, his decide that capable properly conducting such son or were sons the when business; and, such done, this was son or sons taking place Wright powers all the have the should by conferred expressly provided will on But the the latter. it was further paragraph Wright
in that should continue executor trustee as and under “until will, such time in his shall he, as which full and discretion, be final,” should determine that or more of the one sons capable taking place. were his paragraph provided any In 9 it was if at that, time any Wright, reason executor, should for un- become perform unwilling able or to duties executor and power trustee he have will, under should and approval authority, of the with of the chancellor chancery county court in which Leflore district situ- is appoint trustee; his executor ated, successor as and any may Wright and “at time C. thereafter said E. appoint appointed, remove his so and suc- successor his may manner; cessor the same continue to exercise power- appointment the same of removal as often as may Wright power he desire. C. E. shall The said have by designate also to or written will, his other instrument may by which him at be left his his successor as death, executor and trustee which shall hereunder, become ef- approved by appointment fective as an whenever said any appointed chancellor.” And trustee executor or so by Wright power authority all have in the should management estate conferred the will on
643 Wright. provided Paragraph and the executor that 10 potver de- the to have the will should trustee under corpus part estate, of the of the income or termine Avhat support any, maintenance and if to the should be devoted provided 'Paragraph that of the Avifeand children. to the not be liable and the executor legatees trustee should any error of Avill“for and under the devisees judgment good from faith incurred or suffered or loss in operation during mercantile or or said the continuance in the control of connection with business, or otherwise my estate.” that, of the funda-
It be seen from the'Avill two Avill upon mental of the testator to confer the purposes were and final full, executor and trustee discretion absolute, in the and es- control, disposition the management, tate in the manner extent that and to same same testator Avould if and to relieve the had, have living, executor from all on account any personal liability thereof, except incurred on account of faith on bad part. his principles Clopton do
Now, case, laid doAvn the along apply being and other cases to an estate line, compre- administered under a AvillAvithsuch broad and powers hensive in the are executor trustee as vested gave will? will conferred this We think not. The power, precedent executor and a trustee full without or- chancery subsequent approving der of the or court, a employ necessary persons properly to order, all the to manage carry conduct and estate, trust in order to purposes power out the testator; the competent and this included employment and aid counsel advise the executor and trust; trustee execution of his grant powers and in the relieved of these Avill any personal liability, except from executor trustee By obligations for bad faith. the Avillthe incurred thus charges against Averemade trust and not estate, personal charges against and trustee. the executor *21 by powers
So we that this will conclude the conferred necessarily ad- on the executor trustee took the and operation the of the ministration of this out of estate principles Clopton and statute, case, of of the and the Surely by appellees. a other like kind, of relied on eases expressly provide testator that ex- in his could his will power employ ecutor to assist' have the counsel should to a him in that estate.; trust and administration of the the charge a for such should reasonable fee services be personal liability against of a the trust and not estate, exactly the the does executor. That is what will here by implication. expressly, necessary —if not It the court from these that action of the follows views ap allowing setting vacating in pellant aside the decree and twenty-five dollar fee out of the the thousand upon ground be trust the not estate, that fee could the upon charge personal amade but was a the trust estate, liability was erroneous. trustee, of1the executor and opinion of of the are that action
However, we the setting vacating- stand, in court aside and the decree must was in shows that there because this case the record ground support the another sufficient to the action. respect. charge Appellees bill that court in in their that procured by on fraud the decree because it was void was part appellant. At of the allowance the of the time the attorney Wright, appellant E. the of the was for C. fee, Fountain,- executor and trustee will W. T. under the attorney He of' M. Foun- in lifetime. W. Sr., his was the Wright trustee tain, G. E. as executor and who succeeded Appellant T. was the Fountain, of the will W. Sr. legatees appellees, legal devisees of the the adviser and Sr.; addition, Fountain, W. T. and, under the will of appellant family, on the and his there existed between very appellees, intimate other, on one hand, and allowing attorney’s fee The relations. decree social appellant The 1922. on be- evidence rendered to was they appellees did not know show half of tended to time in 1928. some until decree existence special attorney one of client is The relation of dealings requires that all The law confidence. tiust and fair- utmost be characterized between them shall attorney. part good So strict faith of the on ness attorney dealings an and his is between this rule attorney prima against be facie to are held as client attorney, such a to sustain in order fraudulent, advantageous burden has him, transaction which is only showdng, but no influence, not that he undue used *22 gave advice his all information and he client that the duty give himself, if it his to he, which would have been attorney The of and had not been interested. relation light regarded in that of client is much the same as guardian Equity a from ward. will relieve client and any advantage bargain hard from undue a or secured attorney by attorney. him his of an 'over The situation power puts with reference to client it in to avail his his only of his of his himself, client, not of the necessities but credulity. liberality only carefully The and law not attorney and watches over all between transactions advantage to client, see that no is taken of the client by attorney, goes his it and but often holds such further, persons be transactions void which between other would equitable principle It a held valid. is that well-settled any acting fiduciary capacity one in a not shall make personal use of that to benefit interests, relation his own “except knowledge with the the full and consent of other person;” fiduciary a and, “when relation is established parties, very closely equity between courts scrutinize any parties by transaction between the which the domin- any profit expense party advantage at ant or secures person influence. All under his transactions be- parties presumptively tween in this relation are fraudu- principles apply probate lent and void.” these to And 646
proceedings involving the administration of estates and guardianships, and similar trust relations. And, when involving a such relation actual fraud, moral exists, turpitude part attorney, on the of the an not indis- is pensable element of fraud. The facts and circumstances' growing may out of relation that ad- be such vantage gotten by attorney constitutes a fraud in rights regardless good on the law his client, attorney. faith of J. 686-688 notes; C. and 3 Free- Judgments, man on 1235 25; section 1120. C. J. Wright report In the executors filed a final Wright’s petition administration estate. of the of1 The accompanying report among the executor out, set things, appellant Wright’s other been had counsel throughout executorship1 the latter’s and that he ren necessary dered and valuable in the services administra prayed compensa estate; tion of the and that reasonable by tion fixed be the court for such services; W. Wright M. who succeeded as and had Fountain, executor, received the be authorized and estate, whole to directed appellant pay the fee so fixed the court, out of the filing report peti of the On funds of the estate. by tion, summons was issued clerk of the court for appellees, including capacity M. Fountain in as his W- appear commanding them executor, cause, show *23 any they why report if the final should not be rati had, by fied and allowed the court. There no was mention petition appellant made in the amount to of fee as the any claim for his services, would nor there recital in was appellees, giving for this summons issued them notice Wright’s executors would court to make an that ask the attorney’s appellant allowing for an fee his order Fountain, executor, services to the estate. M. as W. served summons; waives of the summons was service the appellees. Fountain that on the other W. M. testified necessary appellant for he or not it was asked whether
64? response appear to the in appellees in court any of the to replied was not. appellee that it and summons, Wright’s report execu- of hearing final the of On the allowing ratifying and a-decree rendered the court tors, at appellant’s fixing his services report, for fee and the twenty-five charge a which was made dollars, thousand executor, as upon Fountain, W. M. which the estate, in his pay the estate to out directed and ordered was hands. employee appellant’s
An in on law officetestified that day the after the rendition the decree she directed was by appellant copy to to W. M. a Fountain, send executor, petition report, accompanying of the final same, the the copy a of the decree, which she W. M. Fountain did. pro- as he testified, stated that never knew of above, the attorney’s allowing vision in decree the the until fee, by time in 1928. some There other evidence offered was appellant appellees, bearing question both on the appellees Wright’s of whether had notice executors, report, appel- in their final had the court to asked allow a lant fee for his to estate. services We deem it un- necessary say to set out evidence. this It is sufficient to opinion we are of under the evidence in that, case, including by appellant, that offered and appellees excluded appellant’s trust to court, relations to the and such a character estate of W. T. Fountain, were Sr., attorney’s render as to for decree allowance notwithstanding fee fraudulent in it falls law, short showing appellant procuring de- intended, any appellees wrong. Appellant’s to do the moral cree, appellees to relations to estate and were that he such upon say appellees, called to some sub- form, w&s stantially following: our “Until now have interests through all the administration of this been the same now, estate —there no conflict. But so far has been as my out of a fee for duf- estate services allowance *24 ing Wright’s administration have is we come concerned, Ways. parting to the of the Our are adverse. interests propose I to ask court me a fee for to allow such stating approximately to thenl amount services” — give you you may he would claim —“I this that notice so opportunity, you employ have an to other .if desire, represent you words, counsel to in In this matter.” other nothing* appellees hut actual notice to was sufficient to put protect guard, they might them on in- their terests.
Appellee’s allowing appel- bill to aside the set decree twenty-five attorney’s lant the thousand dollar fee was chancery filed in the at about court, and the same time Incorporated, brought against T. an Fountain, W. action appellant county circuit court of Leflore on a recovery itemized for sworn, account, of the sum eight thirty-five three and hundred thousand dollars sixty-four charged with interest. cents, This account was Incorporated, ap- on the books of T. Fountain, W. to ' pellant’s purports represent goods, wife. It to wares, by Incorporated, and W. T. merchandise sold Fountain, covering period January up to from a short 1, 1923, brought. time the antion The declaration before was charged by that' the indebtedness evidenced this account' appellant, rep- was that of wife; and not his that it goods, appel- resented and wares, merchandise sold family, lant and his wife on on and his not credit, and credit his wife. application appellant, On the the circuit court cause _ chancery was that court to the court, transferre'd appellees, motion con- where, on two were causes together. appellant assigns solidated tried The argues consolidating as error the action of the court in the two causes. opinion
We court are committed no error requiring* to be the causes tried as consolidated *25 one T. cause. The the W. administration of estate of attorney appellant as, Sr., Fountain, the of for services Wright, during executorship the estate the his services attorney executorship during as Fountain, the of W. M. purchase by appellant Wright, who succeeded and the family goods, and the and wares, members his of the by represented merchandise account which the the was in the were all so case, basis action circuit court the intimately emi connected and interwoven that it was nently proper be and that the two causes consolidated very large evi one. tried as To the material extent, a necessarily in dence both causes the same. Further was appel strongly the more, indicates both evidence appellees lant account and intended that on and the sued appellant’s attorney claim for as estate services for the during executorships both far should offset each other so they as would. Where there are between several actions subject-matter being parties, in the same the same the substantially general requiring character each, the same expense, in time evidence to save and each, court, try them actions, is authorized to consolidate the and cause; a shall one whether consolidation as and such place take discretion of which rests the sound court, appeal, with on unless discretion will not be interfered & Co., Yazoo R. it Oil Mill v. M. V. abused. Planters’ is R. & G. v. Mis 138; 153 sissippi Co. Miss. 121 So. Columbus 713, 120 187. 869, 152 Miss. So. Clinic, against appellant itemized account the sworn, Was Incorporated, which W. T. was Fountain, favor of properly in evi- admitted of the court cause, basis circuit by liability appellant’s therefor established dence, appellant’s Over the evidence, court? as held account, objection, in evidence the the court admitted charged F. of W. on the books which as was stated, appellant’s Incorporated, not to wife, and to Fountain, is to appellant. Appellant’s contention affidavit comply the account did not with section Code of 1978, (section Hemingway’s 1927). 1710, That Code part question of the affidavit to the account in inis this language: says foregoing “Affiant further that the ac count in against favor of Incorporated, T.W. Fountain, charged S. L. Gwin, and to Mrs. S. L. to which Gwin, this affidavit is is affixed, true and correct as therein past unpaid stated, owing by and is now due and said S. L. to Gwin said W. T. Incor Fountain, ’’ porated. provides The statute as follows: ‘ person desiring upon open to institute an suit ac ‘A may count'in his favor, make affidavit correctness party against such account, that it due from is *26 charged; any whom it is and in suit thereon such affidavit plaintiff to judg attached the account shall the to entitle at ment trial term of1the suit, unless the defendant the^ plea make affidavit and file with his that the account is particularizing not correct, correct, wherein it- is not in which the event affidavit to the shall account entitle the plaintiff judgment only part to for such of the account by deny as the defendant his affidavit shall not be to apply against but due; shall not to this accounts de against cedents and suits executors or administrators. desiring open A defendant to use an account as a set- off shall be entitled to the of benefit this section.” object dispense proof
The of the statute was to with of the of correctness the items the account when sworn deny to, unless defendant their the should correctness by prescribes means of a counter-affidavit. The statute prop a rule of account evidence. Where the sued on is erly proof the to, sworn of the of the correctness items dispensed account a af is counter is unless with, there denying genuineness fidavit the of the defendant, the part. in or in Reinhardt 49 items whole v. Miss. Carter, par. 1 345; Bower v. 53 C. 315; 666, Miss. Henshaw, J. pleading, 197. The statute not alter the law of does to the a entitled defendant, affidavit, without is counter liability, notwithstanding account be contest his the sworn supra; to. Aaron Podesta, Reinhardt v. Carter, v. Kelly, 82; 133, 95 Miss. S. R. 131 Miss. Gulf I. Co. v. & substantially complied 931. We think the So. statute was ample to in case with, and that evidence was justify appellant finding for court in was liable the account. question pass whether the court do on the not
We appellant refusing in af- erred to allow to a counter file denying fidavit, account in whole or items part, ap- view decree under the we because, take, the pealed part, from be re- is to reversed in cause pointed for be out in this manded trial issues later to opinion.
Appellant setting made answer a out the cross-bill, his Fountain, he had rendered the W. T. services estate executorships; prayed during Sr., both court, allowing event the court should hold that the decree attorney’s twenty-five appellant fee thousand dollar appellant void, to be be allowed a reasonable fee for being court, to the his services estate. On the trial of the view that void on its face for the the decree was already reasons reasons excluded stated, for the same by appellant all the value of evidence offered show attorney was for executors. This his both services as opinion. already in this for error, the reasons stated *27 argues Appellant assigns action of as error the and plea striking statute of of the in from files his court the. pass on not on. We do limitations to the account sued question, is to be fact the cause in this view of is had. trial to be remanded, and another expressed to the leads we The result of views have appealed it insofar as of the decree from, affirmance attorney’s allowing appellant the holds the decree twenty-five void; and ’inso- dollars was fee of thousand appellant of liable the correct items far it for as holds eight thirty-five the sworn account for hundred thousand sixty-four three and thereon. dollars and cents interest appealed The from because of the decree' is reversed by excluding error of the court in the evidence offered appellant showing legal to the the value of services his during estate both the administration of' executors. And ap- decree, this means that insofar as it allowed pellant attorney’s an of five thousand nine hundred fee forty-five seventy-seven cents for his services dollars and during executorship Fountain, of M. is also set W. appellant per- aside. trial But on another be should plead any appropriate if statute mitted, he desires, so to to the sworn and also account, limitations itemized, any genuineness denying file affidavit, to part a counter be But should not of the of the account. he items liability permitted deny items for whatever of the to his genuine account are items is, correct whatever —that by any bought himself or member of the account were family, charged to and remain un- wife, his his question against paid liability for; was for the decided ample appellant by evidence. trial on court they appellees, if on so likewise, And another trial plead appropriate permitted any to should be desire, appellant for claim of his to the statute limitations executorships. legal during both to the estate services subsidiary pertinent any to those issues And other open for another trial. mentioned left are questions argued assignments raise of error The other probability all will in case, in nature of the which, they ar- furthermore, trial; and, on another not arise gravity questions call for a discussion not sufficient court. than in the decree' errors find substantial We no other noted. we those have equally appeal between divided are
The of this costs parties. part, part and affirmed Reversed
653 Suggestion Error. On oe opinion Ethridge, court on the J., the of P. delivered suggestion error. of suggestion protracted consideration of the
After a in that we were reached the conclusion we error, have opinion 18), holding, (126 error in the former So. by proof appellant question of no- the offered on the knowledge tice amount to, of, Fountain, as knowledge fee of the allowance claimed, proof fee the time rea- at it was and the allowed, if insufficient, sonableness of the fee so were be- allowed, lieved to be to sustain the allowance of fee true, former conflict in decree rendered. The evidence by be decided should the chancellor. part
We should not have
of the con
decided
troversy, but should have remanded it to the court be
with directions to admit the
low,
evidence and decide
only
appellate
court
of fact.
court is
a
the issues
This
jurisdiction, -and cannot
of fact which have
decide issues
by
pretermitted
been
the court
or
below,
decide issues
by considering
fact
which
evidence
was excluded
’
deciding
lower court in
the issues of fact.
Planters
See
Gray Bryson,
200;
Ins. Co. v.
47 Miss.
v.
87 Miss.
Cramer,
Thompson
694;
39
First Nat.
84
304,
Bank,
So.
v.
Miss.
36
V. R.
v.
54,
65;
Wallace,
So.
T. &.
R. Co.
90 Miss.
The
Halsell,
Rep.
43
122
v.
Am. St.
Peirce
609,
469,
321;
So.
Kingston
83;
90
43
v.
Lbr. Co.,
Miss.
So.
Edwards
171,
105
69;
Dodd,
Miss.
I. R. R.
v.
So.
C.
Co.
565
598,
Miss.
(N. S.)
;
A.
Mis
61 So.
49 L. R.
Edmunds v.
23,
743,
The foregoing. dicated in the