Carpenter's Administrator v. Demoisey

• Decision Date: 24 February 1931
• Citation: 237 Ky. 628
• Parties: Carpenter's Administrator v. Demoisey et al.
• Court: United States State Supreme Court — District of Kentucky

Page 628

237 Ky. 628

Carpenter's Administrator v. Demoisey et al.

Court of Appeals of Kentucky.

Decided February 24, 1931.

1. Executors and Administrators. — Where master reported settlement filed by administrator and exceptions were addressed to stated accounts, and not to master's reports, but reports were not confirmed and parties understood exact items in controversy, case could be disposed of as practiced, though practice was irregular.

2. Executors and Administrators. — Administrator held not liable for loss incurred by receiver appointed in partition suit to which administrator was not party.

3. Receivers. — Receiver may act as such under agreed order of parties, and his sureties are bound for his acts (Civil Code of Practice, sec. 298).

4. Receivers. — Receiver can be held to account to parties entitled thereto for any funds coming into his hands as receiver.

5. Executors and Administrators. — Worthless rent note taken by receiver appointed in proceedings to partion realty of estate held not chargeable to administrator of estate.

6. Executors and Administrators. — Administrator held not liable for items his estate was entitled to collect from another estate, where failure to collect did not cause loss, since other estate, administrator of which was party, was not shown insolvent.

7. Executors and Administrators. — Administrator is liable for loss to estate resulting from negligent failure of duty.

8. Executors and Administrators. — Administrator held not liable for amount paid on note of testatrix, claimed not liable because surety and married woman, in view of former decision requiring payment.

9. Executors and Administrators. — Administrator held not liable for interest on payments made on notes executed by testatrix, where payments were proper.

10. Executors and Administrators. — Improper charge for interest against administrator cannot be justified by showing interest might have been chargeable on other items (Ky. Stats., sec. 3859).

11. Executors and Administrators. — Liability of administrator for unreasonably delaying settlement of estate, not presented or passed on by lower court, cannot, for first time, be raised on appeal.

12. Executors and Administrators. — Allowance may be made to administrator to cover reasonable and necessary counsel fees.

13. Executors and Administrators. — Refusal to allow administrator full commission of 5 per cent. because of laches, and expense incurred for counsel, held error (Ky. Stats., sec. 3883).

14. Executors and Administrators. — Reasonable compensation allowed administrator for services of counsel must be measured as though work was done by one attorney.

Appeal from Boone Circuit Court.

ROUSE & PRICE, CHARLES STROTHER and JOHN J. HOWE for appellant.

JOHN L. VEST, O.M. ROGERS and D.E. CASTLEMAN for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

This appeal is prosecuted by the administrator with the will annexed of the estate of Lucy A. Carpenter, from a decree of the court settling the accounts of the appellant as administrator.

Lucy A. Carpenter died May 1, 1922, and her will was admitted to probate the following September, at which time a personal representative was appointed. A suit was filed to obtain a construction of the will and to settle the estate. The circuit court held that Mrs. Carpenter died intestate as to a portion of her property and the judgment was affirmed by this court on November 21, 1924. Walton Bank & Trust Co. & C. v. Carpenter et al., 205 Ky. 629, 266 S.W. 358. Since the will did not dispose of the real estate, and its sale was not necessary to pay debts, a separate suit was filed for a partition of the land. In the partition suit an agreed order appointing a receiver to rent and to look after the land was signed by counsel and by the judge of the court in vacation, but by some oversight was omitted from the order book. Nevertheless the supposed receiver qualified and assumed to act as receiver. A report from the receiver was required by the court, and was filed in this record. It concerns this case only in a single particular. The receiver took a rent note from J.W. Doan for $400 which proved to be worthless, and the loss has been charged to the appellant. Wm. J. Carpenter, the surviving husband of Lucy A. Carpenter, renounced the will of his wife and elected to take under the statute. In July, 1924, he died intestate and Theodore Carpenter qualified as his personal representative and is a party to this action. Mrs. Carpenter had children by a prior marriage and the heirs of Wm. J. and Lucy A. Carpenter are not identical. This fact necessitates a separation of the estates and the settlement of accounts between them. The household goods and furniture, piano, and farming implements were taken charge of by Theodore Carpenter as administrator, appraised, and disposed of as a part of that estate. The value of the property was $500 and the item was charged to the administrator of Lucy A. Carpenter upon the ground that the property belonged to her estate and not to the estate of her husband. The emblements of the land of Lucy Carpenter for the year of her death brought $1,577.50, of which the tenant received and retained one-half and the surviving husband got the other half. The administrator of Lucy A. Carpenter was charged with $788.75 for this item upon the ground that the growing crops were assets which the administrator was bound to reduce to possession and to account for to the estate. Kentucky Statutes Sec. 3862; Clore v. Clore, 215 Ky. 532, 284 S.W. 385. Wm. J. Carpenter continued in possession of the lands of his wife until his death in July, 1924, and her administrator was charged $520 for its omission to collect the value of the use and occupation of the lands for those years. It will be recalled that the decision of this court was announced in November, 1924, and until that time the administrator supposed it had authority to manage the land. The portion of the land that was rented to a tenant is not involved, as the rent for that year was collected and accounted for in a settlement. The other lands were left in charge of the surviving husband and no rent was realized from him.

The court charged the administrator with two-thirds of the rental value of the land for the years 1923 and 1924, and compelled it to account for $520 upon that score.

The administrator paid $541.23 to the Erlanger Bank upon a note and was held responsible to the estate therefor on the ground that the testatrix was merely a surety on the obligation and not legally liable therefor, since she was a married woman when she signed it. The court held the administrator liable to the estate as for interest upon several items. The present appeal involves the rulings mentioned and the adequacy of allowances made to the administrator for itself and for its attorneys. The administrator was allowed $400 for itself and $744.10 for the services and expenses of its counsel.

A preliminary question of practice is presented and must be determined in advance of a decision upon the merits. Soon after the settlement suit was filed, a reference to the master commissioner was made with directions to ascertain and report claims against the estate, and to audit and settle the accounts of the administrator. Several separate reports were filed. No exceptions were filed to any of them, except those submitted by the administrator to the charge against it for emblements. A rereference was ordered covering the entire administration of the estate. The master reported the settlement filed with him by the administrator and the exceptions were addressed to these stated accounts, and not to the master's reports. They were entitled, however. "Exceptions to Report of Settlement." The practice was irregular, and the circuit court would have been justified in directing the regular procedure. Roberts' Ex'r v. Dale, 7 B. Mon. 199; Town of Highland Park v. Wilson, 186 Ky. 233, 216 S.W. 370. But none of the reports had been confirmed by the court, and the entire subject was still within its control. Briscoe's Distributees v. Brady, 6 T.B. Mon. 134; Adkisson v. Dent, 88 Ky. 628, 11 S.W. 950, 11 Ky. Law Rep. 85; Larimore v. West, 227 Ky. 306, 12 S.W. (2d) 856; Culver v. Lutz, 171 Ky. 690, 189 S.W. 240. The parties understood the exact items in controversy, and proceeded to a trial without objection. In that situation we are inclined to dispose of the case as it was practiced [cf. Rosa v. Nava, 235 Ky. 574, 31 S.W. (2d) 910], except where it involves such an elaborate analysis of complicated accounts, or raises such serious doubts, as to justify remanding the case for further preparation in accordance with the approved practice. Roberts v. Dale, supra; Connecticut F. Ins. Co. v. Union Mer. Co., 161 Ky. 718, 171 S.W. 407.

The questions presented here have been well briefed, are easily understood, and may be disposed of without any unreasonable or unnecessary burden on the court, and further delay would not be warranted. Cooper v. Williamson, 198 Ky. 62, 248 S.W. 245.

There was no basis for holding the administrator liable for any loss incurred by the supposed receiver. The administrator was not a party to the partition suit, and the attempted appointment of the receiver operated, at least, to make him an authorized agent of the parties to the partition suit, who consented to the terms of the agreed order. The attorneys for all parties to that suit signed the order, which was approved by the judge in vacation, and it constituted all the authority the receiver ever had. A receiver may be appointed by the court, or by the judge thereof during vacation. Civil Code Practice, sec. 298. A receiver may act as such under an agreed order of the parties, and his sureties, in such case, are bound for his acts. Claflin v. Gibson, 51 S.W. 439, 21 Ky. Law Rep. 337. Certainly the receiver himself can be held to account to the parties entitled thereto for any funds that came...