Coker v. Coker

• Decision Date: 12 October 1922
• Docket Number: 7 Div. 255.
• Citation: 208 Ala. 239,94 So. 308
• Parties: COKER ET AL. v. COKER ET AL.
• Court: Alabama Supreme Court

94 So. 308

208 Ala. 239

COKER ET AL. v. COKER ET AL.

7 Div. 255.

Supreme Court of Alabama

October 12, 1922

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Bill by A. H. Coker and others against W. H. Coker, as executor of the estate of John W. Coker, and others, for removal of the estate from probate to equity court, with petition by Dortch & Allen for allowance of attorney's fees. From a decree allowing compensation to the attorneys, the executor appeals. Reversed and remanded.

Hugh Reed, of Center, for appellant.

Dortch Allen & Dortch, of Gadsden, for appellees.

McCLELLAN J.

This is an appeal by W. H. Coker, as executor of the estate of John W. Coker, deceased, from a decree of the circuit court, in equity, awarding Messrs. Dortch & Allen $1,250 as attorney's fee for services rendered in the course of the administration of the estate of appellant's testator. The testator died in April, 1918, a resident of Cherokee county Ala. The executors were relieved by the will from making bond in the premises.

The testator's will required, among other things, that the property of the estate be kept together, if authorized sales were not made, by the executors or surviving executor until his younger grandchild should attain the age of 21 years viz. November 1, 1921, and also that if, at the stated time of distribution it should be found necessary by the executors or surviving executor, a sufficient sum of money (not less than $5,000) should be retained from the earnings of which his widow should be supported and maintained. On September 8, 1919, W. H. Coker, the surviving executor, filed his accounts and vouchers for a partial settlement of his and his then lately deceased coexecutor's administrative acts-the latter's from, to wit, August 26, 1918, to the date of his death, and the former's from May 28, 1918, to September, 1919. On November 10, 1919, the probate court, wherein the administration was then pending, passed and confirmed the account through appropriate decree.

While the administration was pending in the probate court-before its removal in consequence of original bill filed by some of the legatees and devisees on November 27, 1919-Messrs. Dortch & Allen filed a motion or petition to require the surviving executor to execute bond for the faithful discharge of his duties in the premises. The executor did not contest the motion or petition, making bond in the sum of $60,000. On November 27, 1919, as stated, these attorneys filed an original bill, praying the removal of the estate from the probate into the equity court. The order of removal was made December 3, 1919. The complainants-represented by these attorneys with one of the persons made a defendant in the bill-were A. H. Coker, H. B. Coker, S.W. Coker, Lizzie Stout, Josie Stanford, Edna Appleton, and Jimmie C. McEldrath, all legatees and devisees under the testator's will. Before this bill was filed W. H. Coker (the executor), in his individual capacity, had purchased from legatees and devisees their proportionate interests in the estate. After this bill was filed, he likewise purchased other proportionate interests of the complainants, paying therefor to them severally amounts predicated of a total estate value approximately twice that manifested, so to say, by the amounts paid for interests purchased by him before the bill was filed.

On July 12, 1920, these attorneys filed their petition, praying the ascertainment and allowance to them of attorney's fee to be taxed and paid to them as costs in the cause; the petition serving to invoke the court's authority under Code, § 3010. After overruling the executor's demurrer to the petition the court, in its decretal order of November 18, 1920, pronounced, apart from other presently unimportant matters, as follows:

"It is further the opinion of the court that said petitioners, Dortch & Allen, are entitled to compensation out of the assets of the estate of said John W. Coker for their services rendered in the petition in the probate court to require the executor, W. H. Coker, to execute bond as said executor, and for their services rendered in this court in the matter of the original bill filed by A. H. Coker et al. against W. H. Coker, executor, as aforesaid, et al. But it is the opinion of the court that said Dortch & Allen are not entitled to compensation out of the assets of said estate for any other service rendered any of the heirs or devisees of the estate of said John W. Coker, deceased. *** It is further ordered and decreed that petitioners be allowed compensation from the assets of the estate of John W. Coker, deceased, for services in the matter of the execution of bond by the executor and the bringing of this suit named herein. And it is further ordered that it be, and is hereby referred to the register of this court, to ascertain and report to the court what would be a reasonable compensation for the services of said Dortch & Allen, rendered by them in the matter of the requiring said W. H. Coker, executor of the will of John W. Coker, deceased, to execute bond as said executor, and for their services rendered in and about the filing of the bill in this court of A. H. Coker et al., against W. H. Coker, as said executor, et al., on the 28th day of November, 1919."

On March 22, 1921, the register reported the ascertainment of $50 as a reasonable attorney's fee for the service resulting in the giving of bond by the executor, and $250 for filing the original bill mentioned, and also accompanied these findings with the statement that he based his conclusions upon a "strict construction" of the order of reference, and without considering the results or benefits or the amount involved." The court, on April 9, 1921, sustained the exceptions of the attorneys to the register's report, annulled it, and proceeded itself to ascertain and fix, by reference to the entire evidence, the amount, in gross, of $1,250 as reasonable compensation for the attorneys' services in the premises-holding to be "too narrow" and erroneous the register's construction of the order of reference.

The assignments of error assail the conclusions expressed in the decretal order of November 18, 1920, and the sustaining of exceptions to the register's report in its last adjudication in the premises. It is insisted for the attorneys, appellees, that...