Mackin v. Hobbs

Maeshall, T. Error is assigned because the court allowed any part of respondent’s account which it had discretionary authority to disallow. As we view the record such assignment is all that need be considered. After careful study we are unable to understand how the findings respecting the conduct of respondent and his attorneys can be disturbed, or how, regarding the findings as verities, the final result awarding respondent over one half of his claim, — in fact much more than, it would seem, could be realized from all assets available to pay it, under any circumstances, can have more than a mere shadow of justification, if even that. Courts should set a pretty high mark for the judicial test of the business conduct and fidelity of trustees, whose admin — 223 — istration they are in duty bound to supervise. So far as practicable, the popular idea, which is not without some foundation, that a fund, the conservation of which for the owners is dependent upon judicial agencies, is liable to be largely or wholly dissipated under the forms of hiw before reaching the point of final distribution, should be eradicated by significant object lessons in good, careful, economical business management. Severe judicial, mere opinion, condemnation of official unfaithfulness, characterizing the conduct as dishonest and recklessly extravagant, followed by awarding the recreant officer substantial compensation for his worse than useless services, where there is judicial discretion to give or withhold the same, cannot well be jixstified. It certainly will not efficiently promote a high standard of fidelity to official duty. It seems to us that the learned trial court, after so unsparingly and justly, it seems, condemning respondent, as indicated in the statement, treated him with most unwarranted tenderness by the judgment which is complained of. We are judicially informed that respondent presented to the county court for allowance, in the first instance, an account of $163.05 which was more than seventy-five per cent, dishonest; that such account, with knowledge of the facts, was insisted upon as all valid till expenses in litigation over the matter exceeding $1,100 were incurred, which are included in the final account; that had the respondent performed his duty with reasonable diligence and prudence and in good faith none of such litigation would have been necessary; that the litigation so uselessly entered upon was conducted with such laches as to be entirely fruitless. With much detail the court decided that all of the items comprising the original account of $163.05, except a few aggregating $42.15, were included therein in ba!d faith, and it seems here that a part of the $42.15, consisting of $6.15 for an abstract and $7.33 for taxes, related to matters appertaining to the real estate not in — 224 — possession of respondent, tbns leaving only $28.57 allowable under any circumstances. Since tbe legacies and allowed claims of $42.50 were paid before any expense to speak of was incurred in pursuing tbe real estate, it seems evident tbat tbe long, expensive litigation lasting over six years and employing tbe time of tbe county court, tbe circuit and tbis court to a considerable extent, and resulting in tbe charges for disbursements and expenses against tbe estate of over $1,100, to collect a claim wbicb was legitimate only, as indicated, to tbe extent of $28.57, bas no reasonable justification. Tbe trial court was fully justified in concluding tbat if the true nature of tbe account, as known to respondent and bis attorneys, bad been known to those interested in tbe real estate and to tbe county court, before tbe litigation was entered upon, and reasonable business judgment bad been exercised by respondent and bis advisers in handling tbe matter, tbe amount justly due would have been paid. Tbe only asset available for its payment was an interest in real estate worth, according to tbe appraisal filed by the administrator in 1893, somewhere around $700. Tbe whole title was worth $1,675. Tbat was subject to a mortgage for $200 and some back interest and taxes. Tbe one-half in remainder willed to Mary Ann Brown, to be hers in possession after tbe termination of a precedent life estate, was tbe only property chargeable with tbe claim. So it was not very material, from a pecuniary point of view, to respondent whether bis account was allowed in full or at fifty per cent, thereof, since tbe latter was all be could probably collect. Consistent with tbat, though tbe claim was condemned as over fifty per cent, bad because of most reprehensible maladministration, tbe administrator was content not to appeal. Tbe findings, as perhaps is sufficiently indicated in tbe statement, make out about as bad a case of unfaithful administration as can be imagined. They do not seem to leave any ground to stand on in defense of tbe judgment complained of. — 225 — Here, in the languag’e of tbe ti*ial court, is its general characterization of respondent’s conduct: “Tbe administrator acted in bad faith and not for the benefit of the estate; but on the contrary to its injury, in so far as he sought to enforce, by sale of the land, the payment of those particular items amounting to $120 as to which I have hereinbefore held that the same are not lawful charges in his favor against this estate and which make up in part said sum of $163.05. His efforts to secure payment of such items have been involved in all the litigation which has been carried on respecting the sale of the lands, and from the beginning to the end of that litigation he insisted, as he now insists, on the payment to him, from the estate, of those said items, which he is not entitled to recover. I also find that he is chargeable with laches and negligence in the performance of his duties which have unnecessarily and unreasonably delayed the settlement of the estate, and which have rendered ineffectual, and barren of any results other than protracted and expensive litigation, his efforts to effect a sale of the land.” A careful study of the record seems to fully warrant'that condemnation. It will do no good to' go over the case in detail for the purpose of showing the reasons for thus holding. We shall not discuss the items of the account or refer to them further than to point out such as, by statute, respondent is entitled to have allowed as a matter of right. There are some allowances to an administrator which are entirely beyond the reach of discretionary interference. In re Fitzgerald, 57 Wis. 508, 15 N. W. 794; sec. 3929, Stats. 1898. Eirst, he is allowed all necessary expenses in the care, management, and settlement of the estate. Second, he is allowed $1 per day for his personal services, and a commission on the amount of personal estate collected and accounted for by him, and the proceeds of real estate sold by him under the orders of the court. Third, he is allowed such further sums in case of unusual, difficult, or extraordinary services as the county court shall judge reasonable. Fourth, he is entitled to have allowed all judgments for costs rendered against him which the court — 226 — rendering tibe same shall direct to be paid out of the estate, and he is entitled to a direction to that effect or an adjudication that it is omitted because of bad faith or mismanagement on his part. See: 2932, Stats. 1898. It will be observed that under the first head mentioned it was the duty of the court to disallow all charges for expenses not shown to have been necessarily incurred in the care, management, and settlement of the. estate; and that under the third head it was its duty to disallow all claims for compensation for services, except such as were honestly rendered to promote reasonably some object beneficial to the estate. Under the first of such heads we are unable to discover any charge in the administrator’s account, except the items of printer’s fees, aggregating $6.40, and an item of $2 for appraiser’s fees. As there is a charge for appraiser’s fees in the proceedings to sell the real estate separate from the $2 item, we assume that the latter relates to the appraisal of the real estate upon the filing of the administrator’s inventory. Under the second head we find an item of $15 for fifteen days’ personal services of the administrator. We do not see that any ■of the judgments for costs come under the fourth head. Two -of them were rendered in favor of the administrator. Two were rendered against him, but it does not appear that they were directed to be paid out of the estate, as required by practice. Hei v. Heller, 53 Wis. 415, 10 N. W. 620; Ladd v. Anderson, 58 Wis. 591, 17 N. W. 320. Thus we find but $23.46 charged in the account absolutely allowable to respondent. The balance of the charges involve the question of whether they were necessary in the proper management of the estate, or whether, as to judgments, they were ordered paid by, the court rendering the same out of the estate, or whether, in respect to extraordinary services, justice requires the al..lowance thereof under all the circumstances. We cannot, consistently with the fact that over eighty per cent, of the claim which lay at the foundation of the pro — 227 — longed, expensive, and fruitless litigation 'was fictitious, and over seventy-five per cent, of it was sought to be recovered in bad faith, and that the very small amount wbicb was valid could by reasonably prudent management have been collected without litigation, — hold that any of the expenses incurred in trying to make the collection out of the real estate were necessary, within the meaning of the statute. In face of the facts found that bad faith and inexcusable improvidence and laches characterized the litigation, — that it was started without adequate cause and conducted in such a way as in the end to render it entirely useless, we cannot see^that any of the expense thereof can be by the exercise of judicial discretion properly allowed. Expenses dependent upon judicial discretion should always be rejected where they are the result of bad faith or inexcusable negligence. The allowance of such ■expenses is not authorized by statute nor independently thereof. Woerner, Administration, § 516. That condemns every item of respondent’s claim, except the small amount of $25.40. By the Court. — The judgment is reversed, and the cause is remanded with directions to render judgment in accordance with this opinion.