Root v. Leyson

MR .COMMISSIONED POODMAN prepared the following opinion for the court: This is an appeal from an order of the district court allowing an account of the administrator. In July of 1902 John H. Leyson, administrator with the will annexed of the estate of Andrew J. Davis, rendered and presented for settlement and filed in the district court his seventh annual account of his administration of said estate. Afterwards, in August, 1902, Henry A. Doot, Ellen S. Coram, Henry A. Eoot, administrator of the estate of Sarah Maria Cummings, deceased, and Joseph A. Coram, being parties in interest in the said estate, and a part of the distributees thereof, filed in the court their certain objections in writing to this account, and a hearing was had thereon. At the hearing many of the items objected to were withdrawn, — 423 — and the only ones remaining to which objection is here urged are those of $1,250 paid by the administrator to E. N. Harwood “for legal counsel,” and $12,500 paid by him for attorney fees to Eorbis & Mattison. Objection is also made to the account as a whole, on the ground that it is not sufficiently itemized to show the condition of the estate. In December, 1902, the court made an order allowing the account so far as it related to the items not withdrawn, and from this order the objectors appeal. 1. The facts connected with the Davis estate have been so many times stated by this and other courts that a detailed statement is not here deemed necessary. The student of these matters will find a full narrative of them by referring to the following cases: In re Davis’ Estate, 11 Mont. 1, 27 Pac. 342; Id., 11 Mont. 196, 28 Pac. 645; Id., 11 Mont. 216, 28 Pac. 650; Id., 15 Mont. 347, 39 Pac. 292; Id. 27 Mont. 235, 70 Pac. 721; Id., 27 Mont. 490, 71 Pac. 757; Harris, Adm’r, v. Root et al., 28 Mont. 159, 72 Pac. 429; Davis v. Davis et al., (C. C.) 89 Fed. 532; Ingersoll v. Coram et al., (C. C.) 127 Fed. 418. It is sufficient for the purpose of this appeal to say that John A. Davis, the proponent of the will, died pending the contest, and his son, John E. Davis, was appointed administrator of his estate. Erwin Davis had in the meantime made an agreement with John A. Davis, under the terms of which Erwin was to receive one-half of the estate which should pass to John A. Davis under the will, and under the provisions of the will practically the entire estate was to go to John A. Davis. A compromise agreement was subsequently entered into, under the terms of which a certain part of the estate was to go to the heirs of John A. Davis, and the balance of the estate was to go to the heirs of Andrew J. Davis other than Erwin. John H. Leyson is administrator of the latter estate. E. N. Harwood was and is the counsel for Administrator John E. Davis, and Eorbis & Mattison were and are the counsel for Administrator Leyson. The specific objection made to the item of $1,250 claimed to have been paid E. N. Harwood as counsel fee is that the evidence does not dis — 424 — close that it is a proper charge against the estate, and that the same is not sufficiently itemized in the account. The litigation to which reference is made in the record are the cases above referred to as reported in the 27th Montana (70 and 71 Pac.), 28th Montana (72 Pac.), 89th Federal and 127th Federal. In this litigation Judge Harwood represented interests not in accord with the agreement whereby the will was probated, and under which the distributees of the estate of Andrew J. Davis claimed, but directly antagonistic to the claims and demands of some or all of these distributees as to their distributive shares in the estate. And this litigation continued for years, and, still continuing, covers nearly every phase of the Davis estate. This fact alone is sufficient to prevent recovery of this item of expense. An administrator cannot charge an estate with expense incurred in advising with counsel who he knows is at the time representing interests and demands antagonistic to the claims of the heirs, as such, and with respect to those very interests. He cannot in any case or in any manner, either by advice or otherwise, litigate any claim or demand of one legatee or heir at the expense of the estate (In re Dewar' s Estate, 10 Mont. 422, 25 Pac. 1025), for this would be compelling a legatee or heir to pay for the institution and maintenance of litigation directed against himself; and this principle applies to litigation of -matters in difference between parties who are not heirs or legatees and those who are. The administrator may make himself personally liable, but he cannot be permitted to charge the same back to the estate. On question of allowance of attorney’s fees, see Royer’s Appeal, 13 Pa. St. 569; In re Archer’s Estate, (Sur.) 23 N. Y. Supp. 1041; In re Byrne’s Estate, 122 Cal. 260, 54 Pac. 957; Wysong v. Nealis, 13 Ind. App. 165, 41 N. E. 388; Woerner’s Amer. Law Administration, 2d Ed., Sec. 515; Estate of Page, 57 Cal. 238. 2. The objection made to the item of $12,500 paid to Eorbis & Mattison is that it is not sufficiently itemized in the account filed, and that it is not supported by the evidence. The statement in the account of the administrator is: “By Forbis & — 425 — Mattison, atty. fees from Nov. 1st, ’99, to May 1st, ’02 (2y2 years) $12,500.” It appears from the record and is admitted tbat Eorbis & Mattison were the regular attorneys for tbis estate. It is therefore presumed tbat tbey appeared for tbe administrator in all matters of litigation requiring an attorney, and that tbey counseled him on all matters in which be required counsel. Tbe account is for a definite term, and, we think, Sufficiently itemized, taking into account tbe circumstances of this estate as appears from tbe record. Tbe evidence supporting this account is to' tbe effect tbat tbe condition of tbe estate occupied tbe entire time of an attorney, and the mass of litigation, involving various phases of tbis estate, tends strongly to corroborate this evidence. It is in evidence in this cause that nearly every step in tbe administration of tbis estate involved litigation in some form. An attorney and counsel fee of $5,000 per year in an estate of tbis magnitude, involving all tbis litigation — a continued succession of conflicting claims and interests — is not unreasonable, and we cannot say that tbe court abused its discretion in allowing tbis claim. We think tbe action of tbe court with respect thereto should be sustained. 3. It is also objected tbat tbe administrator, in tbe accohnt filed, has not charged himself with tbe appraised value of tbe entire estate, but has simply given a statement of tbe receipts and disbursements of money since bis last report. We are inclined to adopt tbe view of counsel for respondents tbat these intermediate accounts are only to inform tbe court and tbe interested parties of tbe receipts and disbursements and changes in tbe property from time to time, and it is not tbe intention of the law tbat the administrator should in every account give a full inventory of tbe assets of tbe estate. This properly belongs to tbe inventory which is filed, except tbe actual cash on band, which the law appears to contemplate he should carry forward in his several accounts rendered to tbe court. Tbe account filed in tbis case, we think, complies sufficiently with tbe requirement of Sections 2180 et seq., Code of Civil Procedure. We think this order should be reversed so far as it relates to — 426 — the allowance of this item of expense for the $1,250 paid for counsel to E. N. Harwood, and that otherwise the order should be affirmed. Rehearing denied January 16, 1905. ¡Per Curiam. — It is ordered that the cause be remanded to the district court, with direction to that court to modify its order approving the account of the administrator by striking therefrom the item of $1,250 allowed as for counsel fees paid by the administrator to E. N. Harwood, and, as so modified, that the order be affirmed. Modified and affirmed.