Dent v. Foy

• Decision Date: 10 December 1925
• Docket Number: 4 Div. 196,196A
• Citation: 214 Ala. 243,107 So. 210
• Parties: DENT et al. v. FOY et al. FOY et al. v. DENT et al.
• Court: Alabama Supreme Court

107 So. 210

214 Ala. 243

DENT et al. v. FOY et al.

FOY et al. v. DENT et al.

4 Div. 196, 196A

Supreme Court of Alabama

December 10, 1925

Rehearing Denied Jan. 28, 1926

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Suit in equity by Levy W. Foy and others against Helen A. Dent and others. From a decree allowing attorney's fees for complainants' solicitors, respondents appeal, and complainants bring cross-appeal. Affirmed on direct and cross appeals.

See also, 107 So. 218.

Anderson C.J., and Sayre and Miller, JJ., dissenting.

S.H Dent, Jr., and Rushton, Crenshaw & Rushton, all of Montgomery, for appellants.

W.H. Merrill, of Eufaula, and Farmer, Merrill & Farmer, of Dothan, for appellees.

BOULDIN J.

This appeal is to review a decree fixing and allowing fees of complainants' attorney in a suit in equity involving the estate of George H. Dent, deceased.

Decedent died February 28, 1918, leaving surviving his widow, Helen A. Dent, four children, Warren Y. Dent, George H. Dent, Jr., Louie H. Dent, and Helen Dent Williams, and two grandchildren, Levy W. Foy and Fred H. Foy, children of a deceased daughter.

The widow qualified as administratrix of the estate March 15, 1918.

On February 28, 1919, the Foy heirs filed a bill in the circuit court of Barbour county, in equity, against the administratrix and heirs, resulting in the chain of litigation which has continued to this date. The purposes of the bill, so far as now deemed material, were, in brief:

(a) To remove the administration of the estate from the probate court to the equity court.

(b) To require a good and sufficient bond by the administratrix.

(c) To require an inventory and accounting for the personal property of the estate.

(d) To contest a claim for dower and distributive share of the widow; and in this connection contesting the right of the administratrix to apply funds of the estate to the payment of an alleged indebtedness to her individually, or else to treat the funds so applied as a separate estate of the widow going in reduction or satisfaction of her dower and distributive interest.

(e) To have an accounting of alleged advancements made by decedent in his lifetime to the respondent heirs.

(f) For the sale of the real estate of the decedent for division among the heirs upon the ground that it could not be equitably divided.

In dealing with fees to be allowed and paid from the common estate to the attorney employed by and representing on the record some of the heirs, the others being made respondents, questions are here raised as to the right to such allowance, and, if so, for what services, and in what amount.

Upon general principles of equity, a trust should bear the reasonable and necessary expenses of administration. Hence an administrator or other trustee, having need of legal counsel in the prudent management and settlement of a trust, has, without statute, been uniformly allowed the reasonable expense incurred for counsel fees.

As early as Harris v. Martin, 9 Ala. 895, the rule was extended to administration of estates in the county court, and not denied, in a proper case, where the attorney is also the administrator. In Pinckard v. Pinckard, 24 Ala. 250, Bendall v. Bendall,

24 Ala. 297, 60 Am.Dec. 469.

In Grimball v. Cruse, 70 Ala. 534, an attorney's fee was allowed the executor upon a bill for the construction of a will, setting up the conflicting claims of beneficiaries thereunder, and seeking that construction which in his judgment would carry out the purposes of the testator, but not in litigating as a mere partisan between rival claimants.

These cases are illustrative of the rules for allowance of attorney's fees to trustees, charged with the duty of protecting the interests of others. At bottom the rule rests upon the natural equity that he who gets the benefits should bear the burdens.

The rule was not always limited to attorneys' fees for services to trustees. It applied to creditors' bills in general. Thus, in Strong v. Taylor, 82 Ala. 213, 2 So. 760, a bill by one creditor against the trustee in a general assignment to bring in assets for the benefit of all, complainant was given counsel fees for prosecuting the bill, including services in putting the trustee under a good and sufficient bond. In creditors' bills, consent to share in the expense and cost of suit is in equity a recognized condition precedent to allowance of claims. But, in cases of estates in the hands of executors, or administrators, suits conducted by heirs or devisees, although inuring to the benefit of others, did not entitle the complainants to attorneys' fees out of the common fund.

In Grimball v. Cruse, 70 Ala. 534, 544, it was said:

"If some of the parties asserting claim to the property employed counsel to press an interpretation of the will favorable to their views and interests, this was their act, their contract; and if others, standing in like interest, were benefited by the decision thus obtained, we know of no rule of law for fastening a liability on them for any part of the fee. Few decisions are rendered, affecting property rights, that do not in some respects benefit others, who are not parties to the suit or the retainer. To travel beyond the parties making the contract, in search of an implied promise to pay for such incidental benefit, would introduce a new and dangerous principle in implied contracts, the extent of which it is difficult to conjecture. In Roselius v. Delachaise, 5 La.Ann. 481, , the principle declared is well expressed in the headnote, as follows: 'However valuable the services of an attorney may have been to a party in a suit, in which he represented others having a similar interest, he cannot recover a fee from a party who has not employed him.' "

In Foster v. Foster, 126 Ala. 257, 263, 28 So. 624, 626, counsel fee was denied on a bill by distributees to remove the administration to the chancery court and effect a settlement and distribution. This court said:

"In Thirlwell's Adm'r v. Campbell, 11 Bush (Ky.) 168, the Kentucky Court of Appeals, in construing a statute which was depended on as authorizing the general estate to be charged with counsel fees of the complaining distributee, said that 'such a construction would produce results detrimental both to the bar and the general public, for under it the party who would be the first to commence an action would be entitled to have the whole of his counsel fees paid out of the common fund, although he might be the only one who desired suit to be brought or desired the services of the attorney he might employ; *** and would open the door to abuses not contemplated by the Legislature as within the range of the act.' This language was quoted approvingly by the same court in Dougherty v. Cummings' Adm'r [Ky.] 50 S.W. 551, and the reasoning is especially appropriate here, where there is no statute on the subject, and to the present suit, which appears to have been prosecuted by the complainant against the wishes of the other distributees, who, so far as the record shows, have made no agreement, express or implied, to contribute to fees of complainant's solicitors, but who throughout the litigation have been represented by other counsel."

See, also, Humes v. Decatur Land Co., 98 Ala. 461, 13 So. 368.

In Jordan v. Farrow, 130 Ala. 428, 30 So. 338, it was expressly held that counsel fees incurred by complainant in proceedings in chancery for the sale of lands for division could not be allowed out of the common fund. Foster v. Foster, supra, was decided in 1899, and Jordan v. Farrow in 1900.

Thus stood the law until the act of February 2, 1903 (Acts, p. 33, § 1), now codified as sections 6261 (3010) and 9319 (5219) of the Code of 1923. This statute is more inclusive than the Kentucky statute mentioned in Foster v. Foster, supra.

Broadly speaking, this statute wrought two changes in the existing rules: (1) Extending the rule theretofore obtaining in cases "involving the administration of a trust" to include cases "involving a sale of property for distribution or where there is a partition in kind of real or personal property between tenants in common"; (2) authorizing a reasonable fee, taxed as costs, to the attorneys representing the "trust, joint, or common property, or any party in the suit or proceeding."

As applied to attorneys representing the "trust," the statute may be regarded as a statutory adoption of the rule theretofore in force. The extension of the rule to partition proceedings, and to services in representing any party to the suit, has occasioned the construction of the statute in numerous cases.

For reasons of sound policy, as well as upon constitutional grounds, it is the settled construction that attorneys' fees from the common fund are limited to such as inure to the common benefit of all those interested therein. In partition proceedings, the limitation to services "for a common benefit of all" has been expressly incorporated in the statute. Code 1923, § 9319; Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106, 130 Am.St.Rep. 67; Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Bidwell v. Johnson, 191 Ala. 195, 67 So. 985; Id., 195 Ala. 547, 70 So. 685; Butler v. Fuller, 204 Ala. 272, 85 So. 539; De Ramus v. De Ramus, 205 Ala. 219, 87 So. 354; Musgrove v. Aldridge, 205 Ala. 189, 87 So. 803; Graham v. Graham, 207 Ala. 648, 93 So. 660; Coker v. Coker, 208 Ala. 239, 94 So. 308; Dent v. Foy, 210 Ala. 160, 97 So. 627; Ex parte McLendon, 212 Ala. 403, 102 So. 696.

We come to consider what services rendered by complainants' counsel during the long and varied litigation shown by this record are chargeable to the common fund. The filing of the bill was followed by a proper order removing the administration of the...