Summary
discussing factors considered by chancery court in fixing reasonable compensation
Summary of this case from Pannell v. GuessOpinion
No. 34103.
April 1, 1940.
1. EXECUTORS AND ADMINISTRATORS.
The allowance of fees to executors and administrators for services rendered in administration of estate rests in sound discretion of chancery court, there being a minimum allowance of not less than one per cent. and maximum amount of seven per cent. (Code 1930, sec. 1740).
2. EXECUTORS AND ADMINISTRATORS.
Unless record discloses an abuse of discretion vested in the chancery court in allowing fees to executors and administrators, the Supreme Court will not disturb chancellor's action in fixing such fees within limits provided by statute (Code 1930, sec. 1740).
3. EXECUTORS AND ADMINISTRATORS.
In fixing compensation to executors and administrators, skill, responsibility, and amount involved are elements to be considered, since service, skillfully, promptly, and efficiently rendered, should be recognized as being of value to the estate in administering it, and speedy disposition of the matter winding up and settling the estate are important elements and are factors to be recognized and encouraged, and it is not merely labor performed or required in manual work of collecting and disbursing funds of the estate, but responsibility and skill which are important elements (Code 1930, sec. 1740).
4. EXECUTORS AND ADMINISTRATORS.
The chancery court's allowance of $2,000 as compensation to executor of estate consisting of over $65,000 was not abuse of discretion (Code 1930, sec. 1740).
APPEAL from the chancery court of Coahoma county; HON. R.E. JACKSON, Chancellor.
Roberson Luckett, of Clarksdale, for appellant.
An allowance to an executor within the limits prescribed by Section 1740 of Code of 1930 is a matter addressed to the sound discretion of the chancery court.
Brown v. Franklin, 166 Miss. 899, 145 So. 752; Cherry v. Jarratt, 25 Miss. 221; Code of 1930, Sec. 1740; King v. Wade, 175 Miss. 72, 166 So. 327; Powell v. Burrus, 35 Miss. 605; Satterwhite v. Littlefield, 13 S. M. 302; Spratt v. Baldwin, 33 Miss. 581.
The exercise of such discretion is not final but subject to review by this court. If found to have been abused, this court will reverse the decree granting the allowance.
Barton v. Parker, 57 Miss. 144; Brown v. Franklin, 166 Miss. 899, 145 So. 752; Canton v. Ross, 157 Miss. 788, 128 So. 560; Cherry v. Jarratt, 25 Miss. 221; King v. Wade, 175 Miss. 72, 166 So. 327; Satterwhite v. Littlefield, 13 S. M. 302; Spratt v. Baldwin, 33 Miss. 581; Walton v. Walton's Estate, 143 Miss. 666, 109 So. 707.
The allowance of $2,000 to the executor is excessive and exorbitant.
Code of 1930, Sec. 1740.
The allowance to the executor was 3.05 per cent of the estate. It is, it is true, within the limits prescribed by the statute. But it does not follow that for that reason alone it should be confirmed by this court. If it is not reasonable and just, or is more than the executor's services were worth, it should be set aside. The authorities hereinbefore cited amply authorize such procedure.
The statute, Section 1740 of Code of 1930, says that an executor should be compensated "for his trouble." It contemplates that, in the administration of some estates, the executor's "trouble" is worth no more than 1 per cent of the estate administered. It must have had in mind estates with two characteristics: those requiring a minimum of effort on the part of the executor and yet of such size that 1 per cent thereof is substantial compensation. The Lawler estate possesses both of those characteristics.
It must be remembered that this is not one of those cases in which the trial court has a more intimate knowledge of the facts than has this court. Everything done in the management of the estate, every act and deed for which compensation can be claimed, is reflected by the record. This court is, therefor, in as good a position to fix fair compensation to the executor as was the trial court. And it is its duty to review the award of the trial court.
Commodity Credit Corp. v. Bell, 107 F.2d 1001.
W.W. Venable, of Clarksdale, for appellee.
The fee allowed by lower court to an executor or administrator will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion.
Brown v. Franklin, 166 Miss. 899; King v. Wade, 175 Miss. 72.
Therefore the burden of proof is upon an appellant to show that there has been a flagrant and manifest abuse of discretion and there exists a presumption in favor of the correctness of the decision of the lower court, which presumption is conclusive unless and until it is made to clearly appear that discretion has been abused.
Chase v. Lathrop, 74 Colo. 559, 223 P. 54.
The amount allowed by the lower court was within statutory limits as fixed by Section 1740, Code of 1930.
The purpose of statutory limits as fixed by the Legislature based on a percentage of the amount of the estate indicates that the amount of the estate is an element to be considered in the fixing of the fee.
The size of the estate, the skill exercised, the financial responsibility assumed by the executor or administrator, and the promptness and efficiency with which the estate is administered are all elements entering into the consideration of the amount to be allowed.
Powell v. Burrus, 35 Miss. 605; Hayward v. Plant, 98 Conn. 374, 119 A. 431.
In the estate at bar the amount involved and disbursed by the executor was approximately $65,000. This was done under the provisions of a will establishing trust funds, giving specific legacies, involving dealings with numerous parties, involving many interviews, letters, discussions, etc., together with a close study of the provisions of the will.
The financial responsibility assumed by the executor was proportionately large measured by the amount of the estate and the obligation assumed by the execution of executor's bond. The estate was administered with painstaking care, unusual efficiency and promptness, all proper orders being procured, proper records kept and proper accounts to the court being submitted at required times.
The fee allowed the executor in the lower court is sustained by allowances by courts dealing with estates of approximately the same size and where approximately similar work was done.
King v. Wade, 175 Miss. 72; Crump Baker's Estate, 217 Ill. App. 411; Holding v. Allen, 150 Tenn. 669, 36 A.L.R. 743; In re Levy's Estate, 215 P. 811, 125 Wn. 240; Chase v. Lathrop, 74 Colo. 559, 233 P. 54; White v. Louis, 201 Ill. App. 105; In re Johnston's Estate, 198 Iowa 1372, 201 N.W. 72; Evans, Administrator, v. McVey, 172 Ky. 1, 188 S.W. 1975.
Five per cent of the amount of disbursements is a reasonable basis for the allowance of compensation to be modified by the facts of the particular case.
Webb v. Webb., 22 Ky. 163; Parker v. Gwynn, 4 Md. 423; Appeal of Gable, 36 Pa. St. 395; In re King's Estate, 11 Penn. 26; Talliaferro v. Minor, 2 Cal. 190; Quaintance v. Darnell, 14 Ky. L. Rep. 238; Appeal of Kaufman, 12 A. 31.
It is submitted that on principle and authority the allowance of approximately three per cent made by the lower court in view of the work done, amount involved, diligence and skill shown is reasonable and no abuse of discretion has been shown by appellant.
Argued orally by Semmes Luckett, for appellant, and by W.W. Venable, for appellee.
Mrs. Annie Lawler, deceased, executed a will prior to her death in which the Bank of Clarksdale was appointed executor. The estate consisted of something over $65,000, a considerable portion of which was in bank deposits and other solvent assets. It was necessary to have an ancillary administration in the State of Tennessee to collect $2,100 deposited in a bank in that State. When the administration was completed, the administrator filed a claim for an allowance as compensation for his services, and suggested $2,000 as a reasonable amount therefor, and also for an allowance to the attorney as compensation for his services in the said matter in the sum of $600. Frank Ralston, Sr., guardian of his children, Elizabeth Ann Ralston and Frank Ralston, Jr., who were legatees in the will, on being summoned to show cause why the final account should not be approved and said compensation allowed filed objections, and the chancellor heard the testimony bearing on the matter and allowed the executor $2,000 as his compensation, and allowed $600 as attorney's fee to the bank's attorney for services in the said matter, and this appeal is prosecuted from decree allowing said fees.
The matter of allowance of fees to executors and administrators for services rendered in the administration of the estate rests in the sound discretion of the chancery court, there being a minimum allowance of not less than one per cent and the maximum amount seven per cent. This is provided in Section 1740 of the Code, which reads as follows: "On the final settlement the court shall make allowance to the executor or administrator for the property or the estate which has been lost, or has perished or decreed in value, without his fault; and profit shall not be allowed him in consequence of increase. And the court shall allow to an executor or administrator, as compensation for his trouble, either in partial or final settlements, not less than one nor more than seven per centum on the amount of the estate administered; in addition to which the court may allow him his necessary expenses."
Unless the record discloses an abuse of the discretion vested in the chancery court, this Court will not disturb the chancellor's action in fixing such fees within the limits provided by the statute. Brown v. Franklin, 166 Miss. 899, 145 So. 752; King v. Wade, 175 Miss. 72, 166 So. 327. The chancellor is familiar with what is done by an executor-administrator in his court and services of the attorneys representing them therein, and is familiar with the practice of attorneys in his court and the charging of fees for similar services, and he is in a position to judge accurately the value of such services rendered in his court. There are numerous elements that enter into the consideration of what amount of compensation should be allowed within the limits fixed by law, and the mechanical work of making out the reports and of collecting the money and of disbursing it is not the only thing to be considered. The skill, the responsibility, and the amount involved are elements that the Court will take into consideration in fixing such compensation. Service skillfully, promptly, and efficiently rendered should be recognized as being of value to the estate in administering it and the speedy disposition of the matter winding up and settling the estate are important elements and are factors to be recognized and encouraged. It is not merely the labor performed or required in the manual work of collecting and disbursing the funds of the estate, but the responsibility and skill are important elements. There are often matters in which skill and business judgment become very desirable factors, and these properly exercised save much trouble and confusion in such matters.
Looking at the evidence as a whole in the case, we are unable to say that the chancery court abused its discretion in allowing the fees to the executor. There is no contest over the allowance of the amount to the attorney, and the judgment of the court below is affirmed.
Affirmed.