Trotman v. Trotman

Holt, J., delivered the opinion of the court. Thomas E. Trotman, a prominent citizen of Nansemond county, and then about sixty-seven years old, was killed on May 15, 1923, in a crossing accident. He died intestate. There were two children of a first marriage, Harry L. and Percy E. Trotman. They were around forty years old, and had themselves children nearly grown. The first wife had been dead several years. Through industry and cordial cooperation she had contributed materially to the large estate left by her husband. On September 10, 1921, Thomas E. Trotman married Lucy Gardner, his widow now surviving. There was born of this marriage the infant defendant Helen Gardner Trotman, who at her father’s death was only a few months old. Mr. Trotman was a “truck farmer.” He had in cultivation nine farms, and tilled more than two thousand acres. Some idea of the extent of his operations is conveyed by the fact that his administrator during the year of his death realized therefrom $147,235.82. He also ran a country store, — 863 — and had many other interests. His death, which was totally unexpected, threw everything into the utmost confusion. It was immediately necessary that some one familiar with the business and in a position to give it undivided attention be at once retained. Harry L. Trotman, plaintiff below, by reason of his long association with his father, and of the assistance he had long been accustomed to give, was singularly well qualified for this work. The widow waived her rights to administration; he qualified on the estate May 19, 1923, and immediately took charge thereof. A condensed statement of his transaction is set out in the report of Special Master Frank L. Crocker. There was cash in bank $369,346.86. Interest had accrued thereon in the sum of $11,478.27. Receipts from the sale of farm products for the then current year aggregated $147,235.82, while miscellaneous receipts summed up $65,260.44, making a total of $493,321.38. The intestate also owned six hundred and seventeen shares of stock valued at $73,965.00; and registered Liberty Bonds to the value of $52,500.00, therefore the personal estate amounted to $619,786.38. The real estate apart from that in controversy was valued at $210,450.00, probably a moderate estimate. It is difficult to state in detail the work which this administrator was called upon to do. The store had to be closed out and accounts collected; chattels from the various farms had to be sold; controversies with the taxing power, both State and Federal, had to be adjusted; rebates were collected from commission merchants; boats sold; life insurance policies collected. There was paid out by this administrator other than by way of distribution and commissions to himself $181,398.70. There was paid for fertilizer $46,050.65, for seed $22,327.72, for — 864 — mules $1,700.00, to creditors of the store $5,869.29, for farm labor $16,748.07. These items serve to indicate the multitudinous duties of this fiduciary, and the extent of his operations. He was highly successful, and there has been no criticism of his management of the many interests confided to his charge. Mr. T. E. Trotman in his early life was a man of modest fortune, and his success in accumulating his estate was due in a large measure to his wife’s assistance, and to that given to him by his two sons, H. L. and Percy E. Trotman. They had during their entire manhood given to him their whole services, and had received no stated compensation, but only such as the father had from time to time deemed expedient. A short time before his second marriage, and on September 1, 1923, he executed two deeds and delivered them to his son Harry. By them he conveyed the farm known as “Riverside,” containing one hundred and thirty-six and a half acres, to Harry, and that farm known as “Earlhurst,” containing one hundred and forty acres, to Percy, the consideration in each instance being “the sum of one hundred dollars and other valuable consideration cash in hand paid.” These deeds at the date of their delivery were not stamped, and at the father’s suggestion were not recorded promptly, and were not recorded at all until May 19, 1923, four days after his death. In the meantime there was no change in the manner in which these farms were operated. They continued to be cultivated as had theretofore been the case by this father with the assistance of his sons, and the proceeds thereof were taken over by the father as had been his custom. When the administrator qualified, or was about to qualify, some question arose as to the character of the — 865 — property represented by the growing crops, and was settled by an agreement which was: “It is agreed between counsel, representing all parties to this suit, that the receipts from crops growing on the property during the year 1923 shall be treated as personalty, and shall be accounted for by the administrator just as any other personal estate that may come into his hands. “Counsel for the widow and infant child of Mr. T. E. Trotman admits that the administrator is entitled to compensation for his services—in the cultivation, harvesting and marketing of crops of the land of the said Thomas E. Trotman at the time of his death, said compensation to be determined by the commissioner by taking into consideration first the commission of five per cent allowed by law upon the receipts, and such additional compensation as he shall determine from the evidence to be fair for the service rendered.” The decree of June 23, 1924, under which the special master acted, makes no direct reference to the commissions, but only provides in general terms for a settlement of the administration accounts. He is directed to state: “An account of the receipts and disbursements of said Harry L. Trotman, administrator of Thomas E. Trotman, deceased, and an account of the receipts and disbursements of said administrator in relation to the cultivation, harvesting and marketing of the crops on the land of said Thomas E. Trotman at the time of his death.” The issue presented to the Commissioner is stated by him to be: “Counsel for Mrs. T. E. Trotman, the widow, and the infant defendant, Helen Gardner Trotman, contend that she waived her right to qualify on the estate in — 866 — favor of H. L. Trotman, one of the decedent’s sons, upon his assurance or promise to her that no commissions would be charged and therefore no commission should be allowed the administrator. The testimony on this point is to be found in the transcript of the evidence returned herewith, as follows.” These exceptions were filed to the report of the special master: “Lucy Gardner Trotman and Helen Gardner Trot-man, an infant under the age of twenty-one years, by Thomas H. Willcox, her guardian ad litem, except to the report of Frank L. Crocker, commissioner in chancery, filed herein on the 7th day of December, 1925, upon the following grounds: “1. Because the commissioner allows Harry L. Trotman, as administrator of Thomas E. Trotman, commissions on that portion of the personal estate other than the amount received by said administrator from the sale of the farm products belonging to the late Thomas E. Trotman. “2. Because the commissioner holds that the deed from Thomas E. Trotman to Harry L. Trotman, conveying a certain farm in the county of Norfolk known as Riverside, was a gift and not an advancement. “3. Because the commissioner holds that the deed from Thomas E. Trotman, conveying a certain farm in Norfolk county known as Earlhurst, was a gift and not an advancement. “Willcox, Cooke & Willcox, Counsel.” The assignment of error in the petition for appeal which deals with commissions is as follows: “The court erred in allowing and deciding that H. L. Trotman was entitled to the sum of $30,989.32 for his services as administrator of the estate of Thomas E. — 867 — Trotman, deceased. The exception should have been sustained.” The master found that there was no agreement to waive commissions. As to this there was some conflict of evidence, but he heard the testimony, and his findings, which met with the approval of the learned chancellor in the court below, we have no disposition to disturb. It is to be remembered that not until this cause reached this court was there any objection as to the quantum of the allowance, but it was urged with earnestness that the contract to charge nothing whatever except upon farm products had been established. It was conceded that the administrator should be paid for his services in cultivating, harvesting and selling them. The untimely end of that distinguished counsel, Judge Willcox, and the substitution of another with different views, probably accounts for this shifting position. Judge Willcox was of opinion that because of a contract this administrator was, save within the limits noted, entitled to no commissions at all. His successor believes that the sum allowed is, in any aspect, excessive, and that the trial court in its confirmation of this finding of the commissioner committed error patent upon the face of the record. That counsel, equally sincere and able, should at times differ is of course inevitable. Had the issue now raised been presented below there would in all probability have been additional evidence to meet it, and certainly the opportunity to produce such evidence should in good conscience have been given. In Watson v. Bruner, 128 Va. 600, 105 S. E. 97, Judge Saunders, quoting with approval from Hall v. Hall, 104 Va. page 776, 52 S. E. 558, said: “But the report, except as to errors apparent — 868 — on its face, is prima facie correct, and where the evidence is conflicting, the appellate court will not reverse the action of the trial court, overruling the exceptions to the report and confirming it, unless the findings of' the commissioner are clearly erroneous. The exceptions to the report partake of the nature of special demurrers, and serve to direct the attention of the court with reasonable certainty to a specific point in controversy.” In Ober & Sons Co. v. Wm. G. Smith, 122 Va. 311, 94 S. E. 787, the court said in the discussion of this matter: “Under the well settled rule on the subject, the evidence in the cause cannot be looked to by us to ascertain whether the conclusion aforesaid of the Commissioner was sustained or not sustained by the evidence. On the face of the reports aforesaid no error is apparent in such conclusion. No exception having been taken by appellant in the court below, as aforesaid, it is too late for it to raise the objection in this court on appeal. Morrison v. Householder, 79 Va. 627; Hansucker v. Walker, 76 Va. 753; White’s Ex’or v. Johnson, 2 Munf. (16 Va.) 285. The conclusion of the commissioner and the adjudication of the court, by the decree complained of based thereon, aforesaid, were, therefore, final and conclusive upon appellant and are not open to review in this court. Hence we cannot sustain the assignment of error of appellant.” The only statute governing commissions to personal representative' is found in section 5425 of the Code, Avhere it is said that they shall be “reasonable,” which is but another way of saying that they are to be measured by the conscience of the court. The value of the estate, the character of the work, the difficulties encountered, and the results obtained must all be remembered in reaching a judg — 869 — ment. The report of the commissioner must stand unless it is erroneous on its face. Compensation to fiduciaries is a veritable well spring of litigation. Judge Kelly, in Williams v. Bond, 120 Va. 678, 91 S. E. 627, said: “Where no compensation at all is named in the will, the rule is that the allowance shall be reasonable, being usually five per cent on receipts, subject to increase or reduction of this rate under peculiar circumstances. These propositions are not controverted and are well settled.” In Bliss v. Spencer, 125 Va. 60, 99 S. E. 593, 5 A. L. R. 619, it was held that an administrator should not receive commissions on stock that it was not necessary to convert but which might be and should have been distributed in kind. In Allen's Ex’or v. Virginia Trust Co., 116 Va. 319, 82 S. E. 104, Judge Keith says that commissions should be charged against the assessed value of stocks and bonds delivered in kind. In Jones v. Virginia Trust Company, 142 Va. 229, 128 S. E. 533, these cases are reviewed, and the court reached this very satisfactory conclusion: “In reviewing the eases which hold that a fiduciary is not entitled to any compensation whatever where the property bequeathed (though not specific) is delivered in kind, we think the rule laid down is too restricted to meet the requirements of modern business. On the other hand, in view of the fact that the bulk of many large estates is composed of stocks and bonds, which are preferable to money, we are of opinion that the rule laid down in Allen’s Ex’or v. Virginia Trust Company, supra, is too liberal.” It then proceeds to lay down general principles which should govern in the consideration of such an issue: — 870 — “Then, too, in many eases where the estate is large and easy of settlement, a commission of five per cent is out of proportion to the actual work required or performed. “Inasmuch as the statute fails to lay down a hard and fast rule, we are of the opinion that the court should not do so. To us a fair construction of the statute seems to be that if the fiduciary sells property, of whatever kind, he is generally entitled to a commission of five per cent on the receipts. If he has the right to sell, but those entitled to the proceeds of sale prefer to take the property in kind, then he is generally entitled to receive five per cent commission upon the appraised value of the property. If he is not entitled to sell the property, but must deliver in kind (except in case of a specific legacy), he is only entitled to a reasonable compensation to be fixed by the commissioner, or court, upon the proper proof of the expense incurred, the risk taken, and the services rendered in connection with the property so delivered to those entitled thereto.” Where the duties of an administrator are small and consist in the main in the simple distribution of assets, a commission of five per cent on cash, and on stocks and bonds distributed in kind, would be “unreasonable” when the estate is large, certainly in a case in which these items are in excess of $400,000.00, although even then compensation should be made for the responsibilities assumed. But this, in fairness be it said,- is not the situation here. The character of the work has already been stated. Disputed claims in wide variety had to be adjusted; farm operations far in excess of what any ordinary administrator could have been called upon to perform were carried out. Stipulations of counsel show that extra payment for — 871 — this work was a contingency to be reckoned with. Registered government bonds were converted to those that passed by delivery. The store had to be closed out and the accounts collected. These and many other matters were presented to the commissioner, and to his finding on the issue here there was no exception. Our judgment on this branch of this cause is that there is no error on the face of the record, and that this exception must be overruled. The next assignment of error rests upon the refusal of the court to treat as advancements the conveyance of “Riverside” to Harry L. Trotman, and of “Earlhurst” to Percy E. Trotman. The suggestion that these conveyances were for value has been met by the declaration of the grantor himself. No recognition of any pecuniary obligation is shown, but it does appear that parental love and the memory of a wife long dead were the moving causes. Commissioner Crocker thus sums up the situation: “The evidence does not leave us to conjecture as to his purpose and intent in making these deeds. He talked about the matter to his son, H. L. Trotman; to his son’s wife, Mrs. Jennie H. Trotman; to his friend and trusted business associate, E. W. Jenkins, and to his sister, Mrs. Annie R. Sawyer. His purpose and intent was that he wanted to give to his two sons in addition to whatever share they might have in his estate after his death the farms conveyed by said deeds in recognition of, and compensation for, the life, long services they had rendered him, as well as in remembrance of their mother, the loving companion of his life from his young manhood up to and past the meridian of life, and who by her work with her needle, as well as her frugality, economy and encouragement, helped him to acquire his large estate.” — 872 — It is a settled law of this State that a free gift from a father to a son. is presumed to be an advancement, but this presumption is not conclusive, and is always governed by the intention of the donor. The underlying idea is that he should, and usually does intend to, treat his children alike, that equality is equity, but that after all he is the best judge of the claims they have upon him, and his wishes when ascertained should govern. He may give his property in absolute estate to a child or to a stranger. He has the unqualified power of disposition. In McDearman v. Hodnett, et al., 83 Va. 281, 2 S. E. 643, it is said: “It is well settled that questions of advancement always depend upon intention. It was so held by this court in the recent case of Watkins v. Young, 31 Gratt. (72 Va.) 84, and to the same effect are numerous cases. In Watkins v. Young the question was whether a gift made by the intestate in his lifetime, to one of his daughters, was intended as an absolute gift or an advancement. And in determining this question, it was said by the court that ‘the declaration of the decedent, made at the time and subsequent to the gift, may be given in evidence to show that the gift was not made as. an advancement, but as an absolute gift, and vice versa.’ ” In Hill v. Stark, 122 Va. 280, 94 S. E. 792, the court says: “In its strict technical sense an advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor’s estate that the donee would be entitled to on the death of the donor intestate.” — 873 — In Osborne v. Richmond, 131 Va. 261, 108 S. E. 560, Judge Kelly restates the law thus: “The general propositions of law controlling the subject of advancements are well settled in this State, and have been reviewed by this court in several recent cases. Whether a gift to a child, supposing the gift to be adapted to advance the child in life, is or not to be deemed an advancement such as must be brought into hotchpot depends upon the intention of the parent; and a free gift so adapted is prima facie to be presumed to have been so designated.” See also Payne v. Payne, 128 Va. 33, 104 S. E. 712, and Poff v. Poff, 128 Va. 62, 104 S. E. 719. Many other Virginia cases might be cited, but these suffice. And so in its last analysis under settled rules of law we come to a question of fact. Has the purpose of the donor been disclosed by the testimony? We begin with the finding of a master approved by his chancellor. He heard the evidence, and saw the witnesses, and so in such circumstances we content ourselves with the statement that the correctness of his conclusions is strongly to be presumed. How is the intention of the intestate to be ascertained? We look first to the circumstances of the gift, Payne v. Payne, supra, and next to the declaration of the decedent, McDearman v. Hodnett, et al., supra. Conditions have already been described. Here was a man advanced in years, and with grown sons, possessed of a large estate to the accumulation of which they had contributed in a considerable measure and without stated compensation. In short, they had worked for him all their lives. He was about to contract a second marriage. It is reasonable to assume that while yet free to act he desired to make some compensation for all that they had done, nor did it — 874 — seem equitable to permit children who might thereafter be born to share equally in an estate which they had no part in accumulating. We are not, however, left to inferences or required to balance presumptions. E. W. Jenkins, his friend and trusted business associate, testified as follows: “Q. One. moment. I only want you to state a conversation which relates to Mr. Trotman’s intention in the making of those two conveyances. Any other conversation between Mr. Trotman and yourself will be irrelevant? “A. Mr. Trotman told me he had .made a transfer' of what he spoke of as Earlhurst, where Percy Trotman lives, and Riverside, where Mr. Harry Trotman lives;, he had given Earlhurst to Percy and had given Riverside to Harry, and asked me if there was anything" wrong in it, and the conversation went on from that.. The purport of the conversation was this ‘Was there anything wrong in it.’ I said ‘It is yours?’ ‘Yes.’ ‘Well, can’t you do with it what you want to?’ ‘Yes.’ I said ‘You can’t do it after you are married,’ and he said, ‘That is the question, but I want to show those boys that they are very dear to me; their mother worked with her needle to help make this property, and she would sooner see those boys taken care of, if she thought I was going first, than to be taken care of herself.’ Well, we talked on, but I cannot remember what we said, back and forth, but the final end of it was ‘Come what may, there will be enough left to-divide.’ ” sj: ❖ ❖ # # & # # ;iJ “Q. Did Mr. Trotman, in his conversation with you, on this particular occasion, state what his intention was in making those two conveyances? If so, state what he told you? — 875 — “A. I practically covered that. . He said that he wanted, if I remember, to reimburse the boys. . Maybe that is not the word, but my recollection is that he said he wanted to show them that he loved them, wanted to give them this in appreciation of what they had been to him, and he was somewhat conscious there would be criticism, maybe, from somebody else, and we talked the matter over in that way.” Mrs. Jennie H. Trotman’s evidence is to the same general effect. Harry L. Trotman’s evidence in part is: “Q. About what time was this conversation, was it just before his second marriage? “A. Yes, sir, it was. The last conversation I had with him was a very short while before, probably two or three days. He said he was going to be married very soon. He said: T want to give you two boys a deed for your home while it takes only my signature to do so.’ T want you to think of it as coming from your mother, in recognition of what she did for me in helping me to accumulate what I have, for what you and your wife’— he said: ‘Have done for me. * He went on to speak of the time he was sick in 1916, and my wife rendered him very valuable service, to the extent, as he said, of ‘saving his life,’ by her actions, but that has no particular bearing on this, that I know of. He wound up his remarks by saying: ‘You will always have this, regardless of what eventualities may occur,’ and he said, ‘The Lord knows I have got land enough to divide without taking this into further consideration.’ ” Mrs. Annie R. Sawyer testified as follows: “A. Well, he told me just before he was married that he was going to be married; that he had given Harry and Percy those places, and that he wanted them to have that extra; in case of any event it was theirs, they belonged to them. Then after he was — 876 — married, and after I came to Virginia to live, he came to where I am living now one day and talked to me. He spoke of it again, and said the same thing, that he had done this, and that he was glad he had, that he felt like he wanted to give them something extra, that their mother helped him do it when he was making his money. She helped him to make it, and he wanted them to have it; he had enough to make all comfortable besides that, and that is as near as I can remember, and about all be said about it to me.” This is the statement of the widow of her understanding of the transaction: “I said to Mr. Trotman that I inferred from Mrs. Trotman’s letter that he had given them ‘Riverside,’ and if he had I had rather not go there to live. His. reply was: T have not given it to them.’ My reply was: ‘You certainly must have led them to believe you would.’ He said: ‘Yes, I have told them I was going to give them. ‘Riverside,’ and I expect to give Percy ‘Earlhurst,’ and I said: ‘Why don’t you do it now,’ and his reply was: T am not'ready to do it at this time.’ Mr. Trotman spoke to me on a number of occasions of the fact that he expected to give H. L. Trotman ‘Riverside,’ and one of the other farms there—said he would not give him the entire place but would operate the others for himself. He always said, T am going to give Percy ‘Earlhurst,’ which met with my hearty approval. You can well understand that I never-dreamed Mr. Trotman would give them those farms without giving Helen something in place of it. He said always, T will give Helen something in stocks and bonds that will make her independent.’ ” Prom this evidence as a whole the intention seems to be clear. He said to one witness: “You will always have this regardless of what — 877 — eventualities may occur. The Lord knows I have got enough land to divide without taking this into further consideration.” To another he said: “Come what may, there will be enough left to divide,” and he told another: “That he wanted them to have that extra, in case of any event it was theirs. They belonged to them * * * * that he felt like he wanted to give them something extra.” We are of opinion that this evidence amply sustained the finding of the commissioner, and that this assignment of error is not well taken. During the argument of this case Rowe v. Rowe, 144 Va. 816, 130 S. E. 771, was frequently adverted to with praise and blame. That case was properly decided. Mr. Rose consulted counsel as to the status of his gifts. The doctrine of advancement was properly explained to him. In reply he said, “Is that so,” and after reflection summed'up the situation thus: “Well, I don’t know but that the law makes as good a will as I could make,” and so this court was of opinion that the presumpton of advancement was sustained rather than overcome by the declarations of the donor. The court, however, in discussing the effect of the evidence, did say that the circumstances and relations between the father and the children did not have any bearing in that case. Such circumstances and relations were properly admitted as evidence upon the general question of intention. In a prior part of the opinion the court ruled, after stating the presumption as to advancements, that “this presumption may be rebutted by affirmative proof, and for the purpose of showing the real intention of the ancestor, his declarations or statements made at the time of the gift or — 878 — subsequently are competent evidence, as well as the circumstances of the ancestor and relations existing between him and the child,” but held in that case that any inferences from them had no sufficient bearing or weight in it to overcome the positive proof of the actual intention of the decedent to make the gifts to the children as advancements. Opinions of courts, to be correctly understood, should always be read in the light of the facts of the case in which they are rendered. City Gas Co. v. Poudre, 113 Va. 224, 74 S. E. 158, and Atlantic Coast Realty Co. v. Townsend, 124 Va. 506, 98 S. E. 684. We are of opinion that the decree appealed from should be affirmed. A firmed.