Bidwell v. Johnson

• Decision Date: 21 January 1915
• Docket Number: 839
• Citation: 191 Ala. 195,67 So. 985
• Parties: BIDWELL v. JOHNSON et al.
• Court: Alabama Supreme Court

67 So. 985

191 Ala. 195

BIDWELL v. JOHNSON et al.

No. 839

Supreme Court of Alabama

January 21, 1915

Rehearing Denied Feb. 11, 1915

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Howard D. Johnson and others against Jennie H. Bidwell as executrix. From a decree awarding counsel fees, defendant executrix, appeals. Affirmed in part, and in part reversed and remanded.

Gregory L. & H.T. Smith, of Mobile, for appellant.

Frederick G. Bromberg, of Mobile, for appellees.

GARDNER J.

Appellant Jennie H. Bidwell, qualified us executrix of the last will of Rufus Dane, deceased, in the probate court of Mobile county. Inventory of the estate was duly filed by her, and the same was duly appraised. More than three years thereafter, no final settlement of her administration having been had appellees, as some of the distributees of said estate, filed a motion in the probate court to require such final settlement. The court allowed the settlement to be made as a partial settlement only, as prayed by the executrix. It was ordered on the motion of appellees that the executrix be required to give bond. Subsequently on bill filed by appellees, the administration of the estate was removed into the chancery court and bond was made by executrix in response to motion of the appellees. Aside from some special bequests, not necessary here to note, there appears to have been 12 distributees of the estate, 7 of whom are appellees to this cause, who are represented by their counsel, F.G. Bromberg. Motions were made through their counsel for the removal of the executrix, but which were unsuccessful. There were also objections to her accounts and other motions and petitions filed, which need not be enumerated in detail, some of which appear not to have been pressed upon the court, and no testimony offered in support thereof. In February, 1914, all of the distributees interested in the estate entered into an agreement with the executrix whereby they accepted the sum of $1,200 in full payment of their interest in said estate, which sum was to be above all unpaid court costs and commissions. This agreement of settlement appears to have been made without the knowledge or participation of the solicitor for the appellees, but he was instructed by them to carry the agreement into effect. After this was done counsel for appellee then moved the court for an order of reference to ascertain the reasonable sum to pay the solicitor for complainants in the cause for his services therein. The register reported the sum of $2,000, which report was confirmed by the chancellor, and from his decree, ordering the payment of same as part of the court costs, this appeal is prosecuted, and presents the sole question for our determination here.

Upon consideration of the agreement of settlement above referred to, by which each distributee accepted $1,200 as in full payment of any balance due them, and which was to be above all court costs, we are of the opinion that if the fee for counsel for said contesting distributees was properly a matter that could, under the statute hereinafter quoted, be taxable as a part of the costs of the case, such order was not in violation of said agreement of settlement, as is insisted by counsel for appellant.

The executrix was represented throughout by counsel. One of the distributees of the estate was non compos mentis, but was duly represented by guardian ad litem, and counsel for appellees, F.G. Bromberg, was also counsel for said guardian ad litem. For his services in this capacity he was allowed $100 by the register, and to this portion of the report no exceptions were reserved, and therefore no assignments of error were presented thereto, nor is the matter argued in brief for appellant. This allowance, therefore, is without contest, although counsel for appellee argues the same at some length in his brief.

Upon the reference before the register examination was had of an attorney of the city of Mobile of much experience and practice, who testified that the sum of $2,000 would be a suitable compensation to be allowed complainants' solicitor. Among other things he testified in answer to question by counsel for appellees, as follows:

"Upon your statement made to me that through your efforts you had procured for each of the devisees $500 in cash some time ago, and then a compromise which realized $1,200 additional, I think there are seven heirs, and basing my opinion on those facts, I came to the conclusion that your services in recovering that sum and in making the compromise should be 15 per cent. on the first thousand dollars and 10 per cent. on the remainder; that being in accordance with the fee bill adopted by the Mobile Bar Association."

The cases relied upon by counsel for appellant as denying the allowance of any counsel fees for the solicitor for the appellees (Foster v. Foster, 126 Ala. 257, 28 So. 624; Jordan v. Farrow, 130 Ala. 428, 30 So. 338), were decided prior to the passage of the act approved February 2, 1903 (General Acts of Alabama 1903, p. 33), and of course prior to the Code provision which we now have (sections 3010 and 5219 of the Code of 1907). Section 3010 of the Code provides as follows:

"In all suits and proceedings in the probate courts and chancery and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors representing the trust, joint, or common property, or any party in the suit or proceeding, and is authorized to tax as a part of the costs in such suit or proceeding such reasonable attorney's fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court."

Speaking to this section, it was said in the case of Wilks v. Wilks, 176 Ala. 151, 57 So. 776:

"This is a codification and improvement of the act of February 2, 1903. *** We think it was not intended to authorize cestuis que trustent, or parties claiming to be cestuis que trustent, to employ at the expense of the trust attorneys or solicitors for the litigation among themselves of adversary claims as to their respective interests in the trust. In such questions the trust as a trust is not interested, nor would it be equitable that other cestuis--not sui juris perhaps, as is the case with some of the distributees here--should be taxed through the trust fund or estate to carry on litigations, or specific and separable branches of litigations, in which they are not interested, as may well be the case."

The above case concerned the administration of an estate. It was not there questioned but that the section had reference to such an administration, and we are persuaded that such a case presents the administration of a trust within the meaning of this provision of the Code.

It is insisted that a literal construction of the act would authorize the taxation of an attorney's fee for the payment of an attorney for any party to the suit, whether such services were for the common benefit of all or not. Such a construction would, in our opinion, make that provision of the section now under consideration of doubtful constitutional validity. S. & N.A.R.R. Co. v. Morris, 65 Ala. 199; Smith v. L. & N.R.R. Co., 75 Ala. 451; Birmingham W.W. Co. v. State, 159 Ala. 120, 48 So. 658; G., C. & S.F.R.R. Co. v. Ellis, 165 U.S. 151, 17 Sup.Ct. 255, 41 L.Ed. 666.

It is recognized as an established rule of construction that it is the imperative duty of the court to uphold a statute when it is fairly susceptible of two interpretations, one which would uphold its constitutionality, and the other defeat it, though the adoption of the former be the less natural. State ex rel. Collman v. Pitts, 160 Ala. 133, 49 So. 441, 686, 135 Am.St.Rep. 79. Furthermore, such a construction as contended for by counsel would lead to inequitable and unjust results; and, as was said by this court in Blakeney v. Blakeney, 6 Port. 109, 30 Am.Dec. 574:

"To construe a statute according

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