Powell v. Foster's Estate

Ross, C. J. While the controversy over the establishment of the will of Catherine Foster was pending, the plaintiff was selected for appointment as special administrator of her estate “by all the parties in interest . . . because he resided away from the place of contest, and on account of his large business experience and his ability to furnish the bond required.” For the five years during which that controversy was being carried on, the commissioner has found that he, “so far as appeared, managed the property in hishands profitably and to the satisfaction of all interested.” When the controversy over the will was ended, the will established, and the executors appointed, the plaintiff presented and had allowed by the probate court his administration account, From this allowance the executors appealed, mainly, because they claimed that he had overcharged for his services. For these years he had charged, and was allowed, $150 per year, or $750. By Y.S. 5384, the probate court is authorized to allow him two dollars for each day he was employed on the business of his appointment, and, “in cases of unusual difficulty or responsibility, such further sum as it judges reasonable.” The plaintiff’s account does not profess to show the number of days he was employed in the matters of his appointment, and the commissioner makes no report in regard to the number of days he was so employed, nor does he report that his employment involved matters of unusual difficulty and responsibility. Instead, the commissioner reports, “I find that it was not expected, nor understood, at the time [163] plaintiff was appointed as special administrator that he was to serve for the per diem allowed by statute, but that he was to receive reasonable compensation for his services.” The appellant contends that this only finds that the plaintiff so understood. We do not think that this is the fair construction of this finding of the commissioner. He says this was the expectation and understanding at the time of his appointment. He was selected and his appointment procured by all interested in the estate. The fair construction of this finding is, that such was the expectation and understanding of all interested in the appointment, or of the plaintiff and of all parties interested in the estate. That this is the construction to be placed on this finding is further manifest from the fact that the commissioner settles the allowance for the plaintiff’s services upon this basis alone; and from the further fact, that it does not appear that he was requested by the appellant to settle it upon any other basis. It objected to these charges on the ground that they were exorbitant, because his services were not of unusual difficulty or responsibility. This objection the commissioner answers by stating briefly what services he performed, and finding that the plaintiff’s charge therefor is not “unreasonable or exorbitant, and therefore allows the same as charged.” For the services of the plaintiff performed after the appeal was taken, the commissioner disallows one hundred dollars of his charges because he considered them unreasonable considering the amount and character of the services. The defendant further contends that all interested in the estate could not, by agreement with the plaintiff, authorize the probate court, nor the appellate probate court, to allow the plaintiff for services on any other basis than that prescribed by statute. The statute does not, as in the case of a sheriff and some other officers, prohibit the receiving of greater fees. It provides what [164] they shall be in cases where there is no agreement. In authorizing a further discretionary allowance in cases of unusual difficulty or responsibility the statute, in terms, permits the probate court to allow beyond the per diem in such cases, “such further sum as it judges reasonable;” hence it permits all parties interested in the estate, when they desire the appointment of a man of large business experience, to agree with him that he shall be reasonably compensated for his services. By reasonable compensation is meant such as will fairly compensate when the character, effectiveness and ability entering into the service are considered. Such agreement, when reasonable, is allowed between a trustee and the cesiuis que trust. Bowker v. Pierce, 130 Mass. 262. If such agreements are unreasonable in amount, or number of persons employed, they will be disregarded. Barney v. Griffin, 2 N. Y. 372. In Hubbell v. Olmstead, 36 Vt. 619, this court upheld and enforced an agreement for payment beyond the statutory fees for this class of services against the party who entered into the agreement. It is contended that this decision does not authorize the probate court to enforce such an agreement in the settlement of the administration account. There is no apparent reason why it should not, when, as in this case, it is only for reasonable compensation, and all parties interested in the estate have entered into it with the executor or administrator. That the charge is a gross sum per year is no reason why it should be disallowed if its reasonableness is established. It may well require the trier to be more careful, and to place upon the plaintiff the burden of fully establishing the reasonableness of his charges. Evarts. v. Nason’s Est., 11 Vt. 127; Admr. of Merrill v. True, 28 Vt. 676. The plaintiff, as special administrator, held the estate in trust for whomsoever might be found legally entitled to it. As such trustee, he had the right to be compensated for his services out of the fund. Hence the court administering the fund had the right to [165] compensate him from it. Hubbard v. Fisher, 25 Vt. 539. While the precise question now under consideration is not discussed in Foster's Executrix v. Stone, Admr., 67 Vt. 336, the services there allowed for were charged in gross, and allowed for because found to be reasonable. This decision permits the probate court in the settlement of the account of a special administrator to allow against the estate such a sum for his services as is found to be reasonable, although charged in gross, and there is no finding that they were of unusual difficulty or responsibility, and no finding of the number of days which was required for their performance. It is also full authority for the allowance of the $45 for time and expenses in looking' after lands in Iowa. These lands came to the estate through his settlement with the estate of George W. Foster, and his services were performed at the request of all parties interested, although in another state. Considering that they came to the estate in his charge through a settlement effected by him, it may be questionable whether it was not his duty to care for them without any request from the parties interested in the estate. The expenses in the bill of interpleader, allowed for, were incurred in good faith on the advice of an attorney of eminent ability, and without knowledge that he was afflicted with any mental disability. It is true they were unnecessary; that the plaintiff could have fully protected himself in the trustee suits; yet under the facts found they were properly allowed under the decision in Foster, ex., v. Stone, admr. By the appeal the defendant state made the employment of some attorney necessary to protect the plaintiffs interests. Although the plaintiff was an attorney it was not his duty as special administrator to act as such even in his own defence. The charges of Wilson & Hall having been found reasonable, we think, were properly allowed. The commissioner has not allowed the plaintiff for any services in connection with this suit, and such [166] expenses were rendered necessary by the appeal by executors. It is to be presumed that the court in taxing the costs, which are discretionary, will see to it that no costs are allowed which would duplicate any part of this allowance for the services of Wilson & Hall. The allowance for the item to A. K. Brown does not fall within any well-recognized principle. It is found that, in employing Brown, the plaintiff acted in good faith, in what he believed to be for the best interest of the estate of Catherine Foster. This lacks the essential element that the plaintiff acted therein with prudence. The character of the service to be performed, giving notice to heirs of the pendency of the petition, was such that it could have been performed by any sheriff or officer authorized to make such service, on payment of legal fees. Nothing is disclosed which rendered it prudent to employ an attorney, at the rate of ten dollars per day and expenses, to give such notice. There is no finding that shows how much of this expense would have been incurred if the plaintiff had acted in good faith and with prudence. On the facts reported this item was erroneously allowed. As the item is not large, we do not recommit the case, but disallow the same. Judgment reversed, and judgment for the sum found by the county court increased by $34, with interest. As the costs are discretionary and as neither party sustains his contentions, no costs are allowed in this court. Judgment to be certified to probate court. Taft, J., dissents.