Opinion
13802.
JULY 9, 1941.
Equitable petition. Before Judge A. L. Etheridge. Fulton superior court. April 2, 1941.
Dorsey T. Davis and Robert B. Blackburn, for plaintiffs in error.
Thomas M. Stubbs, contra.
1. Where on the petition of legatees against an executor a court of equity takes jurisdiction and by final decree makes final distribution of an estate, that court has jurisdiction to hear and determine the merits of an application by the executor for extra compensation and attorney's fees.
2. Where an executor finds in the papers of his testator a bank book showing a deposit in a bank in the name of another estate of which he was executor, such deposit is prima facie the property of the first estate. In such a case it is error to allow the executor extra compensation from the first estate merely because he wrote letters, inquired at other banks, and examined deed records to ascertain the legatees of the first estate and to discover if there were other assets. It is also error to award attorney's fees to such executor for an attorney who prepared and filed a petition for direction, but abandoned it and then defended against a suit by the legatees of the first estate. Accordingly the judgment is affirmed, with direction that these amounts be written off, and that the judgment be limited to the amount of the regular commission allowed to executors for paying out funds of an estate.
No. 13802. JULY 9, 1941.
Frank Garraux died in June, 1937, leaving a will in which he named Hugh M. Dorsey Jr. as executor. While searching through the possessions of his testator the executor discovered an old savings-deposit book evidencing a savings account of approximately $2700 in the Citizens Southern National Bank, Atlanta, Georgia. The account was in the name of "Estate of A. C. Gann, Frank Garraux, Admr.," and the last entry in the book had been made in 1924. Upon inquiry the executor found that the bank actually had such a deposit, and that it had grown with the accumulation of interest to the sum of approximately $4000. The executor had never heard of A. C. Gann, and did not know that his testator had ever represented his estate, but from a search of the records of the court of ordinary he found that Garraux had qualified as the executor of the will of A. C. Gann in 1917. Gann's will had relieved his executor of making any returns and reports to any court, and there were no other records of the estate of file in the court of ordinary. No records of the estate could be found among the papers left by Garraux. The executor inquired at the other local banks in an effort to locate any other funds which Garraux might have had on deposit as executor or administrator of the estate of Gann, but did not find any. He also made a diligent search of the deed records of the county, to locate any real estate that might be standing in the name of Gann or Garraux as his executor; and he found two unimproved tracts of land of small value, to which title appeared to be wholly or partly in A. C. Gann. From Garraux's former attorney executor Dorsey was able to locate some of the residuary legatees under the will of Gann, and from these legatees he was able to locate the others. He advised the legatees of his findings, but told them that he could not distribute the property among them without an order of the superior court, because he was unable to determine with certainty the ownership of the property. He asked them to institute an action against him to determine this ownership; but when after seven or eight months they had not instituted suit he had an attorney, Thomas M. Stubbs, to prepare and file a petition in Fulton superior court against both the legatees under the will of Frank Garraux and the legatees and heirs of legatees under the will of A. C. Gann, for the purpose of securing an adjudication of the title to the property. About the same time the legatees and heirs of legatees under the will of Gann filed suit against executor Dorsey for the fund on deposit and the real estate, and he abandoned his suit. As the legal representative of the estate of Garraux, deceased, he defended the suit for the benefit of that estate, and procured a judgment in the trial court dismissing the action on demurrer. On review this court reversed the judgment on the ground that the petition, in so far as it related to the fund deposited in the bank, alleged a cause of action. Reynolds v. Dorsey, 188 Ga. 218 ( 3 S.E.2d 564). Upon a trial the jury returned a verdict for the plaintiffs for the bank deposit.
After the rendition of the verdict for the plaintiffs the executor filed in the superior court an application for an award of fees to himself and his attorney from the bank deposit. This petition, after stating substantially all of the facts, contained the following paragraph: "Petitioner states that by reason of the great lapse of time, complete destruction of all records, and the widely-scattered residences of the various legatees under the will of the said A. C. Gann, petitioner's investigation relative to the condition of the estate of the said A. C. Gann, and the ownership of said property required a considerable amount of effort, time, and diligence on the part of petitioner, and later the preparation and filing of the petition in his own name as above referred to; and petitioner states that reasonable compensation should be awarded for such extraordinary services in investigating said estate and producing such funds in court, and that reasonable attorney's fees should be awarded for the preparation and filing of said petition." He prayed for the payment of the statutory executor's commission, and in addition reasonable extraordinary compensation for the unusual work described in the petition, for reasonable attorney's fees for filing the petition which had been abandoned, and for such other and further relief as to the court might seem proper. The plaintiffs demurred generally and specially to the application, and filed an answer in which it was alleged, that the petition filed by the executor for the purpose of determining title to the property was never served upon any of the plaintiffs, that the applicant or his attorney never rendered any services beneficial to the estate of Gann, that the applicant throughout the proceedings pursued a course antagonistic to the estate of Gann and sought to defeat a recovery for the benefit of that estate; and therefore that the applicant as a matter of law was not entitled to the award prayed for. The court overruled the demurrers to the application, and after hearing evidence entered an award of $300 in favor of the applicant as executor ex-officio of the estate of A. C. Gann, and awarded $150 for the payment of attorney's fees in representing that estate. The plaintiffs excepted.
1. Exception is taken to the judgment overruling the demurrers to the application of the ex-officio executor for extra compensation and attorney's fees, and to the award of compensation and attorney's fees. In the argument the jurisdiction of the superior court is challenged. It is insisted that the ordinary has exclusive jurisdiction in the matter of allowing extra compensation. The Code, § 113-2008, declares: "In other cases of extraordinary services, extra compensation may be allowed by the ordinary, but in no case is the allowance of extra compensation by the ordinary conclusive upon the parties in interest." The plaintiffs in error contend that this Code section has been construed to mean that the court of ordinary alone has authority to allow extra compensation. They cite McKinney v. Powell, 149 Ga. 422 ( 100 S.E. 375); but that decision does no more than hold that no grounds were shown by the record for equity to interfere with the administration of the estate, and that the action was properly dismissed on demurrer. Equity assumed jurisdiction in the present case on the petition of the legatees, and by decree completed the administration of the entire estate. Thus having jurisdiction of all the parties, it had jurisdiction to pass such orders as would do complete justice in the case, and to this end it was empowered to determine the questions made by the application for extra compensation and attorney's fees. Adair v. St. Amand, 136 Ga. 1 (6) ( 70 S.E. 578); Hosher v. Fitzpatrick, 146 Ga. 525 (4) ( 91 S.E. 780); Greenwood v. Greenwood, 178 Ga. 605 (3) ( 173 S.E. 858); Citizens Southern National Bank v. Fleming, 181 Ga. 116 (3) ( 181 S.E. 768).
2. In the second place it is contended that, if the court had jurisdiction, the facts set forth in the application and the evidence on the hearing did not authorize the award of compensation to the executor and fees for the attorney representing him. On the former appearance in this court ( 188 Ga. 218, supra) it was held that the fund involved in this litigation was prima facie an asset of the Gann estate. It was therefore not confused or mingled with other property, and necessitated neither extensive inquiry on the part of the representative nor legal advice to determine its proper disbursement. The extraordinary services claimed consist in the main of writing some letters and discussions with the attorney who represented the first executor, to determine the proper parties to whom this money should be paid. Of course it is shown that inquiries were made at other banks in an effort to locate other assets, and that an examination of the deed records was made; but this is no more than the usual and ordinary duties devolving upon any representative of an estate. Both the application and the evidence failed to show any ground for awarding extra compensation to the executor for extraordinary services rendered by him. However, Dorsey by qualifying as the executor of an executor became the executor of the first testator ( Burch v. Burch, 19 Ga. 174; Windsor v. Bell, 61 Ga. 671 (3); Jepson v. Martin, 116 Ga. 772 (2), 43 S.E. 75), and as such he was entitled to the commission allowed by law for paying out this fund, and to the extent of this commission the award of compensation was authorized.
We think the facts as shown by the record fail completely to justify payment of attorney's fees. The claim to this fee is predicated mainly upon the fact that the attorney prepared and filed in behalf of the executor a petition for direction. This petition was immediately abandoned, and instead the same attorney filed a defense to the suit against the executor, brought on behalf of the heirs and legatees of Gann. In this defense his services were wholly in opposition to the Gann estate, and solely in behalf of the Garraux estate. In such circumstances he should look to the latter estate for compensation for his services. It is provided in the Code, § 113-1522, that an administrator may provide competent legal counsel for the estate, according to the needs of such estate; but the facts in this case show no need for the services of an attorney, and the portion of the judgment awarding attorney's fees was unauthorized. Since that portion of the application seeking the regular commission stated a cause of action, it was not error to overrule the general demurrer. All the grounds of special demurrer relate to the portions of the application seeking extra compensation and attorney's fees, and therefore it is unnecessary to render a decision on the exception to the judgment overruling the special demurrers. The final judgment is erroneous to the extent of the extra compensation and attorney's fees contained therein. Accordingly, that judgment is affirmed with direction that these amounts be written off, leaving only the commission of two and one-half per cent. of the total amount disbursed by the executor. Let the costs in this court and in bringing the case to this court be taxed against the defendants in error.
Judgment affirmed, with direction. All the Justices concur.