Whiteside's Estate, In re

Citation248 A.2d 621
PartiesIn the Matter of the ESTATE of George Morris WHITESIDE, II, Deceased. Orphans' Court of Delaware, New Castle County
Decision Date06 December 1968
CourtFamily Court of Delaware

Henry M. Canby, Franklin S. Eyster, II, Richards, Layton & Finger, Wilmington, for exceptants.

E. D. Griffenberg, Jr., Asst. County Atty., Wilmington, and Attorney for Register of Wills in and for New Castle County.

QUILLEN, Judge.

On July 6, 1967, the Wilmington Trust Company and George M. Whiteside, III, Co-Executors of the Estate of George Morris Whiteside, II, filed with the Register of Wills of New Castle County a second and final account which included a legal fee in the sum of $350.00 for services rendered the Estate.

The fee represented a payment to a legal tax specialist for an opinion on an Estate tax problem. In particular, the decedent's wife was entitled to certain post-death payments from her husband's partnership pursuant to the firm's partnership agreement, which were excluded from the gross Estate. The Internal Revenue Service questioned such exclusion and the executors obtained the legal advice in issue as a result of the dispute. The matter was compromised and settled.

The Register of Wills refused to allow the $350.00 payment to the tax attorney as an administration legal expense. The Register recognized it was 'wise' to seek advice, but held that such expense, in view of the size of the Estate, was not 'extraordinary' and therefore should be considered as included in executors' commissions. The Co-Executors, pursuant to Article 4, Section 32 of the Constitution of the State of Delaware, Del.C.Ann., and 12 Del.C. § 2301, filed an exception to the determination of the Register of Wills.

The Exceptants claim initially that the Register of Wills lacks the authority to disallow deductions representing bona fide debts of the Estate.

Under Article 4, Section 32 of the State Constitution, the Register of Wills, in adjusting and settling accounts, acts as an accounting officer with no inherent general judicial jurisdiction over the decedent's estate. Robinson v. Robinson's Adm'r, 3 Harr. 433 (Ct. of Err. & App.1842); Wilmington Trust Co. v. Baldwin, 8 W.W. Harr. 595, 195 A. 287 (Super.Ct.1937); In Re Estate of Morrow, Del.Ch., 219 A.2d 137 (Orph.Ct.1966). But it is the plan of our Constitution that the Register of Wills can be given jurisdiction by the Legislature and the Legislature can under certain circumstances superimpose upon the ministerial act of settling the account a judicial function. Wilmington Trust v. Baldwin, supra, at 195 A. 292.

The statutory law in Delaware, while not explicitly authorizing the Register of Wills to allow commissions for executors and administrators, has long recognized the power of the Register of Wills to allow such commissions. Such recognition must be considered tantamount to a direct legislative grant. In particular, under 12 Del.C. § 1544, the allowance of double commissions in a case of successive fiduciaries is prohibited. Under 12 Del.C. § 2304, no commission is to be allowed 'by the Register of Wills' to any executor or administrator who has not complied with certain requirements of the tax laws. It is therefore clear that the power of the Register of Wills to allow commissions for executors and administrators rests on clear legislative sanction as well as custom. The case law of Delaware has recognized that the power vested in the Register of Wills includes the discretionary power to make such an allowance as is reasonable under the circumstances of the particular case. In Re Brown's Estate, 28 Del.Ch. 562, 52 A.2d 387 (Orph.Ct. 1944); In Re Walker's Estate, 13 Del.Ch. 439, 122 A. 192 (Orph.Ct. 1923).

It is true that each link in the chain, from the indirect Constitutional enabling to the implicit legislative grant to the judicial gloss of discretion on the legislative grant, is less firm than desirable. But it is settled law and the discretionary power of the Register of Wills to fix executors' and administrators' commissions is well established.

Does the chain have yet another link? Does the power to fix executors' and administrators' commissions include the power to allow or disallow fees paid to attorneys by an executor or administrator? This Court is satisfied that the power to fix commissions must necessarily include the power to pass upon the expenses of administration such as attorneys' fees.

This power was expressly recognized in the Brown case, supra, at 52 A.2d 397 where the Court said:

'* * * The amount allowed (executors and administrators) for their services in connection with the settlement of estates is not only intended to cover all the work performed by them but also the trouble and incidental expenses which may be incurred thereby. Where it is necessary for them to employ persons to care for the property or to perform certain services which they are unable to perform, they are entitled to an allowance for this expense.'

In this regard, it has been recognized specifically, although admittedly not challenged, that the Register of Wills has discretionary power in fixing attorneys' fees. In Re Walker's Estate, supra, at 122 A. 194--195.

The power over administrative legal expenses exists as a necessary incident to the power to fix commissions of personal representatives. In the present case, the Register of Wills held that the commission allowed fairly included an allowance for the attorney fee in question. He could have accomplished exactly the same result by allowing the attorney fee as an independent item and reducing the executors' commission accordingly. No significance should be attached to the fact that the Register achieved a result within his authority by using one method rather than another.

In spite of a traditional semantic approach to the contrary, this Court sees no real value for the instant purpose in labeling the discretionary power over attorneys' fees as judicial in nature or accounting...

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1 cases
  • Whiteside's Estate, In re
    • United States
    • United States State Supreme Court of Delaware
    • August 12, 1969
    ...which affirmed a ruling by the Register of Wills refusing to allow the amount of an attorney's fee as an expense of administration. See 248 A.2d 621. The fee was paid to a lawyer who specializes in tax law, and was in addition to the amount paid those attorneys who advised the executors con......

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