Opinion
13147, 13159.
JULY 9, 1940.
Equitable petition. Before Judge A. L. Etheridge. Fulton superior court. October 7, 1939.
Brown Brown and J. Wightman Bowden, for plaintiff in error.
Powell, Goldstein, Frazer Murphy and James W. Dorsey, contra.
1. The merits of this equitable petition against an administrator, by a person claiming the estate as the lawful wife of the decedent and under an alleged trust between her and the decedent, with an intervention by an alleged wife who procured the administration, have been determined by the trial court and this court in favor of the plaintiff. Brown v. Parks, 173 Ga. 228 ( 160 S.E. 238), 169 Ga. 712 ( 151 S.E. 340, 71 A.L.R. 271). The present bill and cross-bill of exceptions involve only the correctness of certain disbursements and claims by the administrator, as allowed or disallowed by an auditor under the previous final decree, and the apportionment of the auditor's fee and costs equally between the administrator and the plaintiff.
2, 3. The successful plaintiff wife was not precluded by the statute of limitations or by laches from proceeding under the final decree for an accounting before the auditor in 1939, although the final decree was rendered in 1930, since the decree contained no judgment for any sum of money against the administrator, but provided merely that he pay to the plaintiff "such sums as may, upon such accounting, be found to be due."
4. Nor was the plaintiff precluded from so proceeding by evidence showing, as alleged, a previous settlement or accord and satisfaction between the administrator and the plaintiff.
5. The previous orders of the judge, taken by consent of all parties, and expressly authorizing certain payments by the defendant administrator, eliminate from further consideration such items of disbursement, and all allowances excepted to save those further dealt with.
6. For the reasons stated in the opinion, the judge and the auditor properly allowed interest to the plaintiff only from the date of the auditor's report, then fixing for the first time the amount of the defendant's liability.
7. An auditor's report being prima facie correct, and the burden being on one excepting to show error, it is incumbent upon him to set forth or attach the evidence necessary to pass upon any exception of law or fact that requires a consideration of evidence, or at least to point out the location of such evidence in the auditor's report.
( a-d) In the absence of such a showing as to evidence, with regard to the necessity for the administrator to incur certain items of expense and additional attorney's fees, and to support his claim for extra compensation, no error appears in the disallowance of these items by the judge and the auditor.
( e) The judge, by order in 1931, having directed that the defendant administrator turn over to the plaintiff the $684.07 balance then in the bank to the credit of the administrator, and having expressly found that this amount was "not subject to any further expense of administration," and no exception having been taken to this order, the administrator was thereby precluded from afterwards claiming the statutory commission on such disbursement; and the judge and the auditor did not err in disallowing it.
8. The judge did not abuse his discretion, in this equity cause, in apportioning the auditor's fee and costs equally between the defendant administrator and the plaintiff.
9. Under the preceding rulings, the judgment of the trial court, overruling all exceptions and approving the auditor's report, must be affirmed on both bills of exceptions.
Nos. 13147, 13159. JULY 9, 1940.
W. L. Parks died intestate. In 1927 Eva Templeman (also known as Parks) filed a petition to the ordinary, claiming to be the wife of Parks, and procured the appointment of an administrator for his estate, consisting of realty and money in a bank. In 1927 Nannie Parks, claiming to be the lawful wife of Parks, filed an equitable petition against the administrator, praying for injunction, nullification of the administration proceedings, and establishment of a trust in her favor as to the real estate and money, and to obtain these assets, on the ground that she was the lawful wife, and Eva Templeman was not the lawful wife, but had fraudulently procured the administration. Eva Templeman filed an intervention in the case. On April 21, 1927, at a hearing on the rule nisi, an order was passed, reciting that it was made by "consent of counsel," signed by the attorneys for the parties, and authorizing the administrator "to pay the necessary expenses of administration, such as court costs, funeral expenses, bond premium," and to "pay himself $62.50 on account of fees as administrator, and to pay his counsel $150 on account of his fee, and to pay counsel for plaintiff a similar sum on account, any other expenditures to be made only by order of the court." Upon review of a judgment on demurrers to the petition, this court held that the petition was good against the general and special demurrers, except as to certain special grounds attacking an amendment seeking to recover damages in tort, and the sufficiency of an averment relating to the recovery of the property as a trust. Brown v. Parks, 169 Ga. 712 (supra). On April 6, 1928, a consent order was passed, authorizing the administrator to pay $150 to the attorney for Eva Templeman, the intervening claimant, with a stipulation that it was made without any admission as to her rights. On December 18, 1930, a consent order was passed, authorizing the administrator to pay $150 to the attorney for the intervening claimant, $13.12 for state and county taxes, and to pay the city taxes.
The plaintiff having amended her petition as to the alleged trust and otherwise, a jury in 1930 returned a verdict that the plaintiff, Nannie Parks, was the lawful wife of the decedent at the time of his death; that the decedent held title to the real estate in trust for the plaintiff; and that she "is the owner of the savings account" and other personalty in question. On June 18, 1930, the court entered a final decree, reciting the findings of the verdict, and decreeing that the plaintiff "is the sole heir at law" of the decedent; that "title" to the real estate "is hereby vested in the plaintiff . . as sole heir at law," that "all funds upon deposit" in the savings department of a named bank to the credit of the decedent at the time of his death "is and at the time of [his] death . . was vested" in the plaintiff. It was further decreed that "letters of administration heretofore granted to the said [administrator] upon the estate of [the decedent] be revoked". It was also decreed that the administrator "forthwith . . transfer, assign, and pay over to [the plaintiff] or to her attorneys of record all of said funds, save and except so much as heretofore have been properly expended by him;" and "come to an accounting with [her] before [a named person], who is hereby appointed auditor with power to pass upon all questions of law and fact as to receipts and disbursement of said funds by the said [administrator]; and the said [administrator] is hereby ordered to pay over to [her] or her attorneys of record such sums as may, upon such accounting, be found to be due, and thereupon, upon full settlement with [her], he and his sureties on his bond as administrator of the estate . . shall be discharged from all liability to [her]". Upon review of the refusal of a new trial to the administrator and the intervening claimant, Eva Templeman, this court in 1931 affirmed the judgment of the trial court, upon the ground that the jury were authorized to find, as they did, that the plaintiff was the lawful wife of the decedent, and that if she was the lawful wife "she became the sole heir of the deceased and entitled to the estate, which was shown to be without debts;" that "there would be no impediment to the discharge of the administrator and delivery of all assets in his hands to the sole heir, the wife;" and that "questions as to . . resulting trust . . become entirely immaterial." Brown v. Parks, 173 Ga. 228 (supra).
In 1931 the plaintiff applied for an order requiring payment to her of $684.07, on deposit in the savings department of the bank; and on October 23, 1931, the judge, although the administrator resisted the payment on the ground that stated amounts of costs in the court of ordinary and in the suit itself and other expenses remained unpaid, held that this fund was "not subject to any further expense of administration", and directed that it be paid over to the plaintiff. This was done. There is no evidence to indicate that this amount was paid or received as a full settlement in an accounting or as an accord and satisfaction by the administrator, even though the parties and attorneys on both sides remained inactive as to any further accounting, and the office file relating to the case was found at the residence of one of the plaintiff's attorneys after his death. The original auditor having resigned, Robert B. Blackburn was appointed auditor in 1932. No one proceeded with the questions of accounting before him. In 1938 an order was taken reappointing him, and hearings before him were begun in 1939. In 1939 the administrator filed in this suit what he designated as a "return . . showing what money came into his hands as administrator and what disbursements were made by him." This showed as received in the savings account $2,425.18 principal, and $210.71 interest paid by the bank from 1927 until the delivery of the balance to the plaintiff in 1931, $2,635.99 as total receipts. The report showed disbursements of $2,736.49, including an item of $100 claimed as extra compensation and other amounts as expenses to the administrator for going from his home in Henry County to Fulton County and attending to affairs of the estate and the handling of this suit in Fulton County, as well as fees and expenses to his attorneys in going to Pittsburgh, Pennsylvania, additional to fees previously allowed by consent order of the court.
The auditor found that the totals of receipts and disbursements were as reported by the administrator, but that he was entitled to credits of only $1,847.79 for disbursements, and was chargeable with the $798.09 [$788.20?] difference between his receipts and such credits; and was not chargeable with interest. He disallowed the items claimed by the administrator for commission on certain amounts, and for additional compensation, additional attorney's fees, and expenses. The administrator filed exceptions of law and fact to this report as to items found adversely to his contentions. The plaintiff filed exceptions to $285.79 of items found in favor of the administrator, and to the disallowance of interest. In October, 1939, the judge overruled the exceptions of law on both sides, disapproved the exceptions to the findings of fact, approved all the findings of the auditor, and ordered that the plaintiff have judgment against the defendant, as administrator de bonis testatoris, for $798.09 and interest from July 8, 1939, the date of the auditor's report finding as to the amount due in an accounting. He also divided the auditor's fee of $74.37 and $40 stenographic costs equally between the plaintiff and the administrator. The case is before this court on exceptions by the administrator to the adverse rulings by the auditor and the court, and to the award of auditor's costs partly against him. By cross-bill the plaintiff also excepts to the adverse rulings by the auditor and the court, as stated, and to the award of auditor's costs partly against her. Other essential facts are indicated in the opinion.
1. On the merits of the original controversy between two alleged wives of the decedent, as to the inheritance, as to the alleged ownership by the plaintiff claimant of real estate and moneys by virtue of an alleged trust, as to the alleged fraud of the defendant alleged wife in procuring the appointment by the ordinary of the defendant administrator and the legality of his possession of the estate, the jury and the trial court found in favor of the plaintiff wife, bringing this suit; and this court has affirmed its judgments as to the essential pleadings and merits of the case. Brown v. Parks, 173 Ga. 238, 169 Ga. 712 (supra). The present bill and cross-bill of exceptions involve only questions of accounting between the administrator and the plaintiff under the original final decree; exceptions by both parties to findings by an auditor, all of which were approved by the judge, as to proper disbursements, credits, and debits of the administrator; and the apportionment by the judge of the auditor's fee and stenographic costs equally between the plaintiff and the administrator.
2. Although decrees in equity for the payment of money "become dormant like . . judgments [at law] when not enforced" (Code, § 37-1211) as required by the Code, § 110-1001, relating to enforcement of judgments at law, this rule does not apply to a decree which is not a judgment for a sum of money. See Butler v. James, 33 Ga. 148, 151; Conway v. Caswell, 121 Ga. 254 (2), 258 ( 48 S.E. 956, 2 Ann. Cas. 269); Cain v. Farmer, 74 Ga. 38. Accordingly, the part of this final decree, rendered in 1930, which required that the defendant administrator "come to an accounting" with the plaintiff wife of the decedent as to receipts and disbursements of funds coming into the hands of the administrator, and "pay over . . such sums as may, upon such accounting, be found to be due," was not within the dormancy statute; and the plaintiff was not precluded from thus proceeding before the auditor, although neither party began hearings before the auditor until 1939.
3. The mere inactivity of the parties, after the final decree for an accounting, and while the cause remained pending before the auditor, would not constitute such laches by the plaintiff as would debar her from the accounting decreed.
4. The record does not show any such final settlement or accord and satisfaction between the administrator and the plaintiff as would defeat the right of the plaintiff to the accounting.
5. The fraud alleged in the petition did not relate to any act by the defendant administrator, appointed by the ordinary before the filing of the present suit in 1927; and the final decree in 1930, revoking the letters of administration, did not nullify the previous orders which allowed fees to the administrator and to the attorneys for all parties, and costs and expenses. By consent of counsel on both sides, orders authorizing such payments were made from the beginning of the suit until December, 1930, after the final decree. The first order in 1927 authorized the payment of "the necessary expenses of administration, such as court costs, . . bond premium," $62.50 on account of fees to the administrator, and other specified sums as fees to counsel for the respective parties, and taxes. It directed, however, that "any other expenditures be made only by order of the court." Other consent orders were subsequently taken. Accordingly, whatever might otherwise have been the legal rights of the respective parties as to any items so allowed by express terms or clear implication, there is no merit in any exception. This ruling excludes from further consideration any items of disbursement except those hereafter stated; eliminating premiums on the bond of the administrator, court costs, fire-insurance premiums, and commission on certain disbursements to the administrator, to the allowance of which the plaintiff excepts.
6. The judge and the auditor properly refused to allow interest in favor of the plaintiff against the administrator, except from the date of the auditor's report, then for the first time fixing any liquidated amount due to the plaintiff. This is true since the petition failed to claim any specific amount of principal, or to pray for interest or for an accounting; and since the final decree in 1930 did not fix any amount of liability, but provided merely for an accounting. Furthermore, it appears that the interest which the administrator received from the bank where the money was deposited in the savings account was duly accounted for, and the auditor charged such amounts as well as the principal against the administrator. As to any additional amounts, if there had been appropriate pleading, the auditor found that there was not sufficient proof adduced to sustain this claim of interest; and there are not sufficient data as to dates, debits, and credits, so as to show the amounts of any such additional interest, and enable a determination of what, if anything, might be thus due. See Code, § 57-110; Lincoln Lumber Co. v. Keeter, 167 Ga. 231 (3), 236 ( 145 S.E. 68); Roberts v. Prior, 20 Ga. 561; Firemen's Insurance Co. v. Oliver, 182 Ga. 212 ( 184 S.E. 858).
7. "It is incumbent upon a party excepting to the report of an auditor in an equity case, when the exception thereto involves a consideration of the evidence on which the auditor based his findings, to set forth, in connection with each exception of law or of fact, the evidence necessary to be considered in passing thereon, or to attach thereto as an exhibit so much of the evidence as is pertinent, or at least to point out to the court where such evidence is to be found in the brief of the evidence prepared and filed by the auditor." Orr v. Cooledge, 125 Ga. 496, 499 ( 54 S.E. 618), and cit. "The report shall be taken as prima facie correct, and the burden shall be upon the party making the exceptions." Code, § 10-402.
( a) The administrator excepted to the disallowance by the court and the auditor of $100 paid to his attorney in 1930 before the final decree, as expenses in going from Atlanta to Pittsburgh to attend the taking of evidence in behalf of the plaintiff by deposition. The auditor found that "these items were not supported with sufficient evidence . . to authorize them to be a proper and valid charge." No evidence by inclusion or reference appears in the exception to contradict this finding; and nothing is shown as to why it was necessary to expend this considerable amount for what seems to have been merely a cross-examination on a deposition.
( b) Exception was taken also to the disallowance of items aggregating $226, for traveling and stop-over expenses incurred by the administrator in going from his residence in Henry County to Fulton County, where this suit and the administration proceeding were pending. The auditor found that "the evidence as offered by the administrator . . was vague and indefinite, and not with sufficient clearness to support the claim." No evidence appears to contradict this finding. Furthermore, as the auditor also found, these expenses were not authorized by any order. The original order in 1927, while authorizing "court costs," in the "necessary expenses of administration," provided in terms that "any other expenditures . . be made only by order of the court." The incurring of litigation expenses, therefore, without express authority or clear legal right, was at the risk of the administrator. An examination of these items as claimed shows that some of these expenses, covering periods of several days at a time, are stated as having been incurred in "conferring with attorneys in preparation of cases," or merely "in connection with cases," and the purposes of other out-of-town expenses are not stated. Irrespective of whether or not, as the administrator contends, it was his duty to defend the suit against the trust claim of the plaintiff, the necessity for incurring these considerable amounts in so active a defense does not appear.
( c) For similar reasons, no error is shown in the reduction by the court and the auditor of the administrator's claim for his attorney's fees from $500 to the $150, which had already been allowed by the consent of counsel on both sides. No evidence appears as to the value of the services rendered, or to show any abuse of discretion by the judge in limiting the allowance to the amount previously paid by consent. And this is true whether or not it was the legal duty and right of the administrator to incur against the estate such a large amount of fees, without express authority from the court, in order to make the active defense which was continued for a period of years.
( d) For like reasons, the disallowance of the administrator's claim of $100 for extra compensation is not shown to be erroneous, under the finding of the auditor that "there was no evidence submitted . . sufficient to support [this] claim."
( e) Even though the original order of April 21, 1927, consented to by the signature of all attorneys, provided that "the administrator is authorized to pay the necessary expenses of administration such as court costs," the judge, construing this order on the application of the plaintiff to require the bank and the administrator to turn over to her the $684.07 balance in the bank to the credit of the administrator, found, in his order of October 23, 1931, that the fund was "not subject to any further expense of administration," "denied the right of charging against the fund any further expense," and ordered that this fund be paid over accordingly. No exception being taken to this order, the administrator was bound thereby as the law of the case, and consequently was not entitled to contest it by afterwards claiming an item of $17.10 as his statutory commission on such disbursement. Therefore the judge and the auditor did not err in disallowing this item.
8. In an equity cause the judge "may determine upon whom the costs shall fall" (Code, § 37-1105); and "it is plainly settled that [he may] in his discretion . . apportion an auditor's fee between the parties, or even award it against the successful party; and this court will not interfere unless discretion has been abused." Hicks v. Atlanta Trust Co., 187 Ga. 314 ( 200 S.E. 301), and cit. Accordingly, the judge did not abuse his discretion in dividing the auditor's fee and stenographic costs equally between the parties, since it does not appear that the administrator participated in any alleged fraud by the claimant wife in procuring the letters of administration, such as was charged in Bowers v. Dolen, 187 Ga. 653 ( 1 S.E.2d 734), and since the orders and proceedings for an accounting showed that there were matters of bona fide dispute between the parties, as to a part of which the defendant administrator prevailed.
9. No error appearing on either the mail bill of exceptions of the defendant administrator or the cross-bill of exceptions of the plaintiff, as to the items respectively attacked, the judgment of the trial court is
Affirmed on both bills of exceptions. All the Justices concur, except Reid, C. J., disqualified.