51 S.E. 953 | N.C. | 1905
The executor of the will of T. K. Byrd having renounced, the plaintiff qualified as administrator with the will annexed, and on the day of his qualification was sued by his father, Thomas Kelly, before a magistrate, for one hundred dollars alleged to be due (279) by the testator for services rendered in nursing him. Plaintiff did not resist a recovery, but permitted judgment to be taken by default. This was in 1891. Plaintiff then commenced this proceeding to have the testator's land sold to pay said judgment and a debt to another party of $7.50 due for medical services, which was admitted. The land was bought from the devisees by the defendant, who denied that anything was due to Thomas Kelly, and, it seems, impeached the judgment taken before the magistrate as having been obtained fraudulently. An issue was submitted to the jury, based upon this defense, who found that there was nothing due to Thos. Kelly. This verdict was set aside and the issue was submitted to another jury at a subsequent term, who found in the same way, that there was nothing due. Defendant was adjudged to pay the costs of the proceeding and the charges of administration. The clerk taxed in the bill $20 for attorney's fee paid for bringing and prosecuting this proceeding, to which exception was taken by the defendant. The court directed the clerk as referee to ascertain and report if the services for which the fee was charged were rendered "in the interest of a fair administration of the estate and was a reasonable allowance." The clerk reported "as a fact" that the services were rendered "in the interest of a fair administration of the estate," and that $20 was not an unreasonable charge therefor. The court thereupon rendered judgment against the defendant for the costs and charges, including said fee. Defendant excepted and appealed.
The statute provides that an executor may be allowed commissions and may retain for necessary charges and disbursements in the management of the estate. Code, section 1524. Compensation is allowed in order to reward (280) him, not only for his time, labor and trouble in administering the estate committed to his charge, but also for the responsibility incurred and for the fidelity with which he discharges the duties of his trust — the theory of compensation being that it is incident to faithful *236
administration — and it should not be allowed if there has been neglect or improper conduct whereby the estate has suffered loss. In the case of charges and disbursements the same rule applies, and the statute provides that they must have been necessary to a proper management of the estate. Included in legal charges and disbursements, are sums paid to an attorney or counsel for professional services rendered to the personal representative. The latter has the right, unless restricted by statute, as he is not in this State, to employ an attorney whenever it is necessary to protect the estate or to enable him to manage it properly, and on the settlement of his accounts he will be allowed credit, as part of the expenses of administration, for the reasonable charges paid by him for such services. 11 A. E. (2 Ed.), pages 1240 and 1282. It has ever been the ruling of this Court, founded of course to some extent upon the provision of the statute, that reasonable fees paid counsel for advice and assistance in the management of a trust, and even in meeting a demand by action for a settlement, will be allowed to the trustee, whenever the services were necessary or proper and the payment made fairly on account of the trust estate. Young v. Kennedy,
But while such an allowance will be made, it must be remembered that it is always based upon the prudence and good faith of the trustee. Therefore, the credit will not be given if litigation has been (281) improperly instituted by him or was the result or consequence of his neglect or improper conduct, benefit to the estate being generally necessary to charge the estate with an expenditure of this character. Commissions and allowances, as we have shown, are both intended as a recompense for honest and faithful service only, and are never awarded to one who has been guilty of a breach of duty. Johnston v. Haynes,
The plaintiff has paid his attorney, and properly, as he was clearly liable to him. What we have said has no application as between them. An executor is always personally liable to his counsel for his fee or compensation, but it is in no sense a debt of the estate. He is liable in such case in his individual and not in his official capacity. This is perfectly familiar learning. Devane v. Royal,
Error.
Cited: Craven v. Munger,
(283)
