15 S.E.2d 779 | Ga. | 1941
1. Where on the petition of legatees against an executor a court of equity takes jurisdiction and by final decree makes final distribution of an estate, that court has jurisdiction to hear and determine the merits of an application by the executor for extra compensation and attorney's fees.
2. Where an executor finds in the papers of his testator a bank book showing a deposit in a bank in the name of another estate of which he was executor, such deposit is prima facie the property of the first estate. In such a case it is error to allow the executor extra compensation from the first estate merely because he wrote letters, inquired at other banks, and examined deed records to ascertain the legatees of the first estate and to discover if there were other assets. It is also error to award attorney's fees to such executor for an attorney who prepared and filed a petition for direction, but abandoned it and then defended against a suit by the legatees of the first estate. Accordingly the judgment is affirmed, with direction that these amounts be written off, and that the *539 judgment be limited to the amount of the regular commission allowed to executors for paying out funds of an estate.
After the rendition of the verdict for the plaintiffs the executor filed in the superior court an application for an award of fees to himself and his attorney from the bank deposit. This petition, after stating substantially all of the facts, contained the following paragraph: "Petitioner states that by reason of the great lapse of time, complete destruction of all records, and the widely-scattered residences of the various legatees under the will of the said A. C. Gann, petitioner's investigation relative to the condition of the estate of the said A. C. Gann, and the ownership of said property required a considerable amount of effort, time, and diligence on the part of petitioner, and later the preparation and filing of the petition in his own name as above referred to; and petitioner states that reasonable compensation should be awarded for such extraordinary services in investigating said estate and producing such funds in court, and that reasonable attorney's fees should be awarded for the preparation and filing of said petition." He prayed for the payment of the statutory executor's commission, and in addition reasonable extraordinary compensation for the unusual work described in the petition, for reasonable attorney's fees for filing the petition which had been abandoned, and for such other and further relief as to the court might seem proper. The plaintiffs demurred generally and specially to the application, and filed an answer in which it was alleged, that the petition filed by the executor for the purpose of determining title to the property was never served upon any of the plaintiffs, that the applicant or *541
his attorney never rendered any services beneficial to the estate of Gann, that the applicant throughout the proceedings pursued a course antagonistic to the estate of Gann and sought to defeat a recovery for the benefit of that estate; and therefore that the applicant as a matter of law was not entitled to the award prayed for. The court overruled the demurrers to the application, and after hearing evidence entered an award of $300 in favor of the applicant as executor ex-officio of the estate of A. C. Gann, and awarded $150 for the payment of attorney's fees in representing that estate. The plaintiffs excepted.
1. Exception is taken to the judgment overruling the demurrers to the application of the ex-officio executor for extra compensation and attorney's fees, and to the award of compensation and attorney's fees. In the argument the jurisdiction of the superior court is challenged. It is insisted that the ordinary has exclusive jurisdiction in the matter of allowing extra compensation. The Code, § 113-2008, declares: "In other cases of extraordinary services, extra compensation may be allowed by the ordinary, but in no case is the allowance of extra compensation by the ordinary conclusive upon the parties in interest." The plaintiffs in error contend that this Code section has been construed to mean that the court of ordinary alone has authority to allow extra compensation. They cite McKinney v.Powell,
2. In the second place it is contended that, if the court had jurisdiction, the facts set forth in the application and the evidence on the hearing did not authorize the award of compensation to the executor and fees for the attorney representing him. On the former appearance in this court (
We think the facts as shown by the record fail completely to justify payment of attorney's fees. The claim to this fee is predicated mainly upon the fact that the attorney prepared and filed in behalf of the executor a petition for direction. This petition was immediately abandoned, and instead the same attorney filed a defense to the suit against the executor, brought on behalf of the heirs and legatees of Gann. In this defense his services were wholly in opposition to the Gann estate, and solely in behalf of the Garraux estate. In such circumstances he should look to the latter estate for compensation for his services. It is provided in the Code, § 113-1522, that an administrator may provide competent legal counsel for the estate, according to the needs of such estate; but the facts in this case show no need for the services of an attorney, and the portion of the judgment awarding attorney's fees was unauthorized. *543 Since that portion of the application seeking the regular commission stated a cause of action, it was not error to overrule the general demurrer. All the grounds of special demurrer relate to the portions of the application seeking extra compensation and attorney's fees, and therefore it is unnecessary to render a decision on the exception to the judgment overruling the special demurrers. The final judgment is erroneous to the extent of the extra compensation and attorney's fees contained therein. Accordingly, that judgment is affirmed with direction that these amounts be written off, leaving only the commission of two and one-half per cent. of the total amount disbursed by the executor. Let the costs in this court and in bringing the case to this court be taxed against the defendants in error.
Judgment affirmed, with direction. All the Justices concur.