116 Va. 130 | Va. | 1914
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court for Madison county, which overruled exceptions to a commissioner’s report in which a fee of $3,500 paid by D. M. Pattie, sheriff of Madison county and as such administrator de bonis non of R. F..Lake, deceased, to his counsel had been allowed.
The fee in question was excepted to by the appellant as administrator of Mrs. R. V. Lake, deceased, upon three grounds:
*132 “First: Because no part of said fee should be charged against the distributive share of Ann Y. Lake, but all should be charged against the distributive share of the heirs at law of R. P. Lake;
“Second: Because so far as the exceptor is concerned he received no benefit from said services;
“Third: Because.the fee is exorbitant and excessive under all the circumstances of the case.”
This suit, in which the said fee was allowed, was brought by the appellant as administrator of Mrs. Ann Y. Lake, deceased, for the purpose of asserting debts claimed to be due his decedent’s estate from the estate of her late husband, R. P. Lake, deceased; to subject a fund arising from the sale of an interest in certain real estate conveyed by her husband to Rixey, trustee, to secure certain creditors, including his liabilities to his wife, Mrs. Ann Y. Lake, for moneys loaned and surety-ship undertaken by her; and if the moneys and choses in action, &c., in the hands of Rixey, trustee, were not sufficient for that purpose, to subject the other assets of her husband’s estate to their payment. The bill further asked that in the event the property in the hands of Rixey, trustee, was more than sufficient to pay the liens thereon under the deed of trust to him, the surplus of that fund should be distributed to those entitled thereto, and to that end that all the creditors of R. P. Lake’s estate be convened, the assets of his estate marshalled and all of his debts paid; that all proper accounts be taken, an adequate attorney’s fee to the appellant’s counsel for instituting and conducting the suit be allowed, and for general relief.
The creditors, heirs at law and distributees of R. P. Lake, deceased, known and unknown, were made parties to the suit. Process was served upon the resident defendants, viz., Pattie, administrator of R. P. Lake,
Some nine months after ‘the suit was brought and before any depositions had been taken on either side, a compromise or settlement was effected between the appellant as administrator of Mrs. Lake and Pattie as administrator of R. P. Lake, and a consent decree entered, by which it was provided that the administrator of Mrs. Lake should receive from Rixey, trustee, out of the funds in his hands, the sum of $13,161.32, in full settlement of all his decedent’s claims against her husband’s estate, except as distributee thereof, and that the residue of the fund in the ' hands of Rixey, trustee, should be paid Pattie, administrator of R. P, Lake. Out of the sum so received by Pattie, administrator, he was required to pay off and discharge a bond for $5,000 executed by his decedent and Mrs. Lake, and secured on the latter’s real estate and payable to Bickers; to pay the costs of administration, including the costs of this suit, any debts properly established against the estate of R. P. Lake, and to distribute the residue among those entitled thereto.
The money and choses in action in the hands of Rixey, trustee, aggregated about $29,000. Out of this sum the appellant received, as before stated, $13,161.32, and his decedent’s estate was protected against the $5,000 debt for which it was liable by requiring the administrator to pay it out of the funds which he received from Rixey, trustee, thus leaving in his hands from that source
The personal representative of a decedent’s estate is no mere stakeholder, as the appellant insists, but he is the legal owner for the time being of the personal estate of which the decedent died seized and possessed, 18 Cyc. 206-7. The fact that a creditor who asserts a claim against a decedent’s estate and brings a suit to enforce it is also a distributee does not render it any the less the duty of the decedent’s personal representative to make defense than if such creditor was not a distributee.
The compromise settlement and consent decree by which the claim asserted was reduced in amount by sixty to seventy per cent, show that the administrator of E. P. Lake properly defended the suit, and that he would have been derelict in his duty if he had not done so. The consent decree not only shows this, but it also shows that the appellant and the court entering the decree recognized the fact that the personal representative of E. P. Lake, as such, had authority, if acting in good faith (and his good faith is not questioned) to
Tbe defense made by tbe personal representative of E. P. Lake being for tbe benefit of tbe estate as sucb, be was entitled, out of tbe assets of tbe estate in Ms bands, or wbicb came into bis bands, to pay tbe legitimate costs, including a reasonable attorney’s fee for making sucb defense before either creditors or distributees were entitled to receive anything. It is no doubt true, as stated in tbe appellant’s exception No. 2 that be received no benefit from tbe legal services of tbe counsel who were paid tbe fee to tbe allowance of wbicb be excepts. Tbe fee allowed was for legal services beneficial to tbe debtor’s estate, for just in tbe .proportion that those services lessened tbe appellant’s recovery, in tbe same proportion it benefited the debtor’s estate. It was payable and-was paid out of tbe debtor’s estate wbicb it benefited.
Tbe appellant’s distributive interest in E. P. Lake’s estate was subject to tbe payment of all legitimate charges for admimstering it, including costs and counsel fees properly incurred. They were first to be paid, no matter who was entitled to tbe residue, whether creditors or distributees. Tbe court is of opinion, therefore, that tbe circuit court did not err in overruling tbe appellant’s exceptions Nos. 1 and 2 to tbe commissioner’s report, and that Pattie, administrator, is entitled to a credit in tbe settlement of bis accounts with bis decedent’s estate for a reasonable attorney’s fee for services rendered in defending bis decedent’s estate against appellant’s demand.
This brings us to a consideration of appellant’s exception No. 3, viz., that tbe fee allowed, $3,500, “is exorbitant and excessive under all tbe circumstances of tbe case.”
Affirmed in part and remanded.