Tripp v. Tripp

BROCK, Judge. It has long been established in this jurisdiction that a reasonable fee for legal advice and assistance in the management of a trust estate is allowable as a necessary expense of the trust estate. Lightner v. Boone, 221 N.C. 78, 19 S.E. 2d 144; Young v. Kennedy, 95 N.C. 265. Our statutes permit the allowance of reasonable sums for necessary charges and disbursements incurred in the management of a trust estate. G.S. 28-170; G.S. 7A-103(11). Also, our statutes authorize the judge to tax the costs, including reasonable attorney fees, in applicable cases. G.S. 6-21. [66] The instant action was for a declaratory judgment and for instructions to the fiduciaries in connection with the sale of certain trust property. It therefore falls clearly within the category of actions described in G.S. 6-21(2), and the judge was thereby authorized to tax a reasonable attorney fee in the costs of the action and apportion it among the parties. The fixing of reasonable attorney fees in applicable cases is a matter within the sound discretion of the trial court. Godwin v. Trust Co., 259 N.C. 520, 131 S.E. 2d 456. “A discretionary order of the trial court is conclusive on appeal in the absence of abuse or arbitrariness, or some imputed error of law or legal inference.” 1 Strong, N. C. Index 2d, Appeal and Error, § 54, p. 213. Appellants’ exceptions and assignments of error numbers 1 and 4 are addressed to the refusal of the judge to grant summary judgment for appellants, or, alternatively, to dismiss the petition for allowance of attorney fees; exceptions and assignments of error numbers 2 and 3 are addressed to the refusal of the judge to exclude certain hearsay evidence. Appellants argue that petitioner’s evidence failed to show (1) that his services were for the estate, (2) that they were reasonably necessary, and (3) the amount charged is not excessive. Appellants cite Lightner v. Boone, supra. At the hearing it was stipulated that the judge might examine all pertinent documents in the hands of the Clerk of Superior Court of Pitt County including the case file of this declaratory judgment action together with other documents, instruments, and letters. The items included under this stipulation clearly show (1) that petitioner’s services were rendered to the estate, and (2) that legal services to the estate were reasonably necessary. The determination of a reasonable fee was the purpose of the petition. This argument by appellants cannot be sustained. With respect to appellants’ objection to the admission of hearsay evidence, it is clear that the rules of evidence are relaxed at a hearing before the judge without a jury. Stansbury, N. C. Evidence 2d, § 4a. This argument by appellants cannot be sustained. Appellants’ assignments of error numbers 1, 2, 3, and 4 are overruled. [67] Exception and assignment of error number 5 is as follows: “To the order of the Court dated March 14, the findings of fact and conclusions of law therein and to the signing and entry thereof.” This constitutes a broadside exception and assignment of error as it relates to the findings of fact and the conclusions of law. Such an assignment of error presents for review the face of the record, and review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found, or admitted, support the conclusions of law and the judgment. Lamb v. McKibbon, 15 N.C. App. 229, 189 S.E. 2d 547. Whether the evidence supports the findings of fact is not presented. Appellants strenuously argue that finding of fact number 28 is improper and cannot support the conclusions of law. In finding of fact number 28, Judge Rouse undertakes to “take judicial notice” of his own opinion of the special competence and skill of Mr. Underwood, the petitioner. Judge Rouse was not the trial judge before whom the declaratory judgment action was tried. The trial judge was Honorable William J. Bundy, now deceased. Therefore, Judge Rouse could not have observed the manner in which petitioner represented his clients in the trial. We agree with appellants that it was improper for Judge Rouse to recite as a fact his general opinion of petitioner gathered from unknown quarters. Nevertheless, the improper “judicial notice” taken by Judge Rouse does not detract from the other facts found. The other facts found from the evidence on this hearing clearly support the conclusion that petitioner is entitled to a reasonable fee for his services, and Judge Rouse has determined the amount in his discretion. Appellants have failed to show an abuse of discretion. Assignment of error number 5 is overruled. Affirmed. Chief Judge Mallard and Judge Britt concur.