Caughman v. Caughman, 18438

• Decision Date: 15 December 1965
• Docket Number: No. 18438,18438
• Citation: 146 S.E.2d 93,247 S.C. 104
• Parties: Charlotte Wenona CAUGHMAN, Appellant-Respondent, v. Ernest Benjamin CAUGHMAN, Elizabeth Caughman, Ernest Bruce Caughman, Willie Mae C. McCoy, Betty Jean C. McCary, John Q. Caughman, Reba C. DeVant and Kitty Faye Caughman, a minor over the age of 14 years, individually and as a class representing the children of Ernest Benjamin Caughman, et al., etc., for whom Kneece and Kneece are, Appellants.
• Court: South Carolina Supreme Court

Page 93

146 S.E.2d 93

247 S.C. 104

Charlotte Wenona CAUGHMAN, Appellant-Respondent, v. Ernest Benjamin CAUGHMAN, Elizabeth Caughman, Ernest Bruce Caughman, Willie Mae C. McCoy, Betty Jean C. McCary, John Q Caughman, Reba C. DeVant and Kitty Faye Caughman, a minor over the age of 14 years, individually and as a class representing the children of Ernest Benjamin Caughman, et al., etc., for whom Kneece and Kneece are, Appellants.

No. 18438.

Supreme Court of South Carolina.

Dec. 15, 1965.

Oxner & Oxner, Columbia, for appellant-respondent.

Kneece & Kneece, Columbia, for appellants.

BRAILSFORD, Justice.

In this equitable action, a sixty acre tract of land, about ten miles east of the City of Columbia, which was devised by the will of Lillian B. Caughman to her daughter, Charlotte W. Caughman, for her life and after her death to her children, with gift over in default of issue to the children of Ernest B. Caughman, a son of testatrix, has been sold for reinvestment by order of the court. The issues on this appeal are confined to attorney's fees, and only a brief background statement is necessary.

The genesis of the action was the desire of the life tenant to convert valuable but unimproved and non-income bearing real estate into property from which she might derive an income. The record indicates that she is of middle age, unmarried, childless, unskilled and incapable of earning an adequate support for herself.

The action was brought by Messrs. Oxner and Oxner, of the Richland County Bar, as attorneys for plaintiff. Ernest B. Caughman and his children and grandchildren, individually and as representatives of their respective classes, were named as defendants. Fictitious persons were also named as defendants to represent any unknown adults, minors or persons under disability claiming any interest in the real estate. Of the named defendants, one child of Ernest B. Caughman and ten grandchildren are minors.

The complaint alleged that plaintiff was in need of income from the property and that 'it would be to her interest as well as that of the remaindermen that the property be sold the trust created by the will to follow and be transferred to the proceeds derived from the sale and the same be invested for her benefit for life with the funds to vest ultimately to those taking in accordance with the provisions of the will.' No facts were alleged indicating that any benefit would or could accrue to any person other than the life tenant from the sale of the property.

Messrs. Kneece & Kneece, also of the Richland Bar, appeared as attorneys for Ernest B. Caughman and his five adult children. These parties vigorously contested plaintiff's right to the relief sought, alleging, in part, that a sale of the property, which was rapidly enhancing in value, would be to the great detriment of those who would become entitled to it upon the termination of the life estate.

The statement of the case indicates that 'the minors and those under disability * * * were represented by Joe E. Berry, as attorney and guardian ad litem except Kitty Faye Caughman who was represented by her father, Ernest Benjamin Caughman.' Pleadings on behalf of the minors are not included in the record. However, their interests on the merits of the cause were identical with those of the adult defendants.

As already indicated, the action resulted in an order that the property be sold, and this has been accomplished at a price of $112,520.19, of which $20,000.00 in cash has been paid to the master and the balance has been evidenced by a note secured by a mortgage of the real estate.

By supplemental report the master recommended that from the cash proceeds of sale a fee of $11,500.00 be paid to the attorneys for plaintiff, and a fee of $4,000.00 be paid to the attorneys for the adult defendants.

Plaintiff alone excepted to the report, charging that the master erred: (1) In failing to recommend that the sum on $15,000.00 be paid to her attorneys as compensation for their services; (2) in allowing any fee to defendants' attorneys; (3) in recommending an excessive fee for defendants' attorneys; and (4) in other respects not now material.

The issues arising on the report and exceptions were argued before Honorable E. N. Zeigler as special judge. After diligent and conscientious consideration, apparent on the face of his order, he rejected the recommendations of the master and allowed a fee of $7,500.00 to plaintiff's attorneys and a fee of $1,500.00 to the attorneys for the defendant. Plaintiff and the adult defendants have appealed from this order.

Plaintiff's single exception challenges the authority of the court to reduce the fee recommended by the master for her attorneys, upon the ground that the master's report, not having been excepted to by the defendants, became the law of the case, 'unless the Circuit Judge increased the fee.' The adult defendants filed seven exceptions, all of which relate to the charge that the court erred in reducing the fee recommended by the master for their attorneys.

Thus, plaintiff has abandoned her challenge to the propriety of allowing a fee for defendants' attorneys. Both plaintiff and the adult defendants are appellants in behalf of the reinstatement of the fees recommended by the master. Neither side opposes the other in this court.

The record does not indicate that a position for or against the allowance of attorneys' fees was taken in behalf of the infant defendants at any stage of the proceedings below, and only plaintiff and the adult defendants are represented in this court. Especially in this situation, it is the duty of the court to protect the interests of defendants under legal disability. Such persons are wards of the court of...