Dorris v. Miller

• Decision Date: 19 May 1898
• Citation: 75 N.W. 482,105 Iowa 564
• Parties: WILLIAM DORRIS, Executor, with Will Annexed of the Estate of JOHN F. MILLER, Deceased, Appellant, v. W. M. MILLER
• Court: Iowa Supreme Court

75 N.W. 482

105 Iowa 564

WILLIAM DORRIS, Executor, with Will Annexed of the Estate of JOHN F. MILLER, Deceased, Appellant, v. W. M. MILLER

Supreme Court of Iowa, Des Moines

May 19, 1898

Appeal from Black Hawk District Court.--HON. J. J. TOLERTON, Judge.

SUIT in equity for an accounting between plaintiff, who is executor of the will of John F. Miller, deceased, and defendant, who at one time acted as administrator of the estate of said John F. Miller, under appointment from the district court of Black Hawk county. The trial court gave plaintiff judgment for two thousand, fifty-six dollars and sixty cents, and both parties appeal. As plaintiff first perfected his appeal, he will be called the "appellant."--Affirmed.

AFFIRMED.

N. M Hubbard and O. C. Miller for appellant.

F. C Platt and Boies & Boies for appellee.

OPINION

DEEMER, C. J.

John F Miller died, testate, in the state of Pennsylvania, August 24, 1893. Defendant, W. M. Miller, is his nephew. About the year 1874, John F. Miller placed nineteen thousand dollars in money in the hands of his nephew, to be loaned in the states of Iowa and Kansas. At the time of his death, this fund amounted to about thirty-six thousand dollars. The uncle also held a note of about five thousand dollars against his nephew. The John F. Miller estate was appraised at seventy thousand dollars, and the will devised the same to the nephews and nieces, and sisters and stepsisters of the deceased. Plaintiff was named as the executor of the will, and a bequest was made to him in the trust for certain uses. Shortly after the death of John F. Miller, plaintiff wrote defendant a letter notifying him of his uncle's death, informing him that he (plaintiff) had been named as executor, and requesting defendant to send him all the securities belonging to the estate. Instead of complying with the request, defendant petitioned the district court of Black Hawk county for appointment as administrator of the estate of his deceased uncle, stating that the validity of the will had been denied by the heirs, and that objections to the probate thereof in the state of Pennsylvania had been and would be urged. He also stated that deceased had personal property in this state to the amount of about thirty-six thousand dollars, and that he was owing an unknown amount to various residents and corporations of this state. On the ninth of September, 1893, defendant was appointed administrator in this state, and he immediately wrote the executor that he had been so appointed, and refused to turn over the assets in his possession. Thereupon plaintiff applied to the Black Hawk district court for auxiliary letters and the probate of the will in this state. This petition was granted, and plaintiff was appointed executor with will annexed on September 29, 1893. On the third of October, 1893, plaintiff filed a motion to set aside and revoke the letters of administration issued to the defendant, and within a few days thereafter the motion was granted, the letters so issued were canceled, and defendant was ordered to turn over to the executor all property of the estate in his hands. The order was conditioned upon plaintiff's filing bond in the sum of seventy-five thousand dollars. The executor appointed by the will found difficulty in securing resident sureties, and, while engaged in this work, the ten days in which resident administrators are required to file bond expired. Thereupon defendant filed a petition for appointment as administrator with will annexed, on the ground that there was a vacancy caused by plaintiff's failure to qualify. No notice was given appellant of this petition. The application was granted, and letters issued to appellee on the eighth day of November, 1893. Dorris appealed from this order, and, upon a hearing in this court, the case was reversed. See 92 Iowa 741. The opinion was filed on the seventeenth day of December, 1894. On the sixteenth day of March, 1895, defendant turned over to plaintiff twenty-seven thousand, nine hundred and ninety-seven dollars and fifty-one cents in cash and six thousand, six hundred and sixty-five dollars and ten cents in notes; and on April 29, 1895, he turned over four thousand, two hundred and sixty-eight dollars in money, and also gave plaintiff a receipt for one thousand dollars, being the amount of his legacy under the will. Plaintiff claims there is yet due him interest on all the money while in the hands of the defendant after the death of his uncle, and before payment to the lawfully appointed executor, the sum of one thousand dollars wrongfully paid by the defendant to his attorneys, the sum of one thousand dollars withheld to pay an alleged additional claim of his attorneys, the sum of one thousand, four hundred and fifty-seven dollars and thirty-five cents wrongfully withheld by defendant as compensation for his services as administrator, and a further sum retained by him to pay the taxes and the costs of the litigation growing out of the several appointments. Plaintiff also asks to recover as damages the amount paid out by him as costs and attorneys' fees in endeavoring to preserve the estate and remove the defendant. The total amount claimed by plaintiff is something over ten thousand dollars. The trial court, as we have said, allowed the plaintiff the sum heretofore stated, made up of the one thousand dollars paid by the defendant to his attorneys, four hundred and fifty-seven dollars and thirty-five cents withheld by defendant as compensation for his services, and five hundred and ninety-nine dollars and twenty-five cents yet in defendant's hands, belonging to the estate. It also made an order disallowing the claim of one thousand dollars for additional attorneys' fees, and denying the defendant compensation for services as administrator. It further denied plaintiff's claim for attorneys' fees and costs, and refused to charge the defendant with interest on the funds in his hands after the death of his uncle, or with the amount paid as taxes. The plaintiff appeals from that part of the order denying him an allowance for attorneys' fees and costs made necessary by defendant's intermeddling with the estate, and refusing to charge the defendant with interest on the funds while in his hands and the amount of taxes paid; and the defendant appeals from the order denying him attorneys' fees and compensation for his services as administrator.

We will first consider the plaintiff's appeal. He argues that he should be allowed the amount paid out by him as attorneys' fees and costs in securing the removal of the defendant. The general rule is that attorneys' fees cannot be recovered from the adverse party, and the only question here is, do the facts of this case bring it within any of the exceptions to this general rule? Counsel for appellant make this citation from Sedgwick, Damages (5th ed), pp. 104, 105: "Where the act complained of is tainted by fraud, malice or insult, the jury which has the power to punish has necessarily the right to include the consideration of the probable counsel fees in their estimate of vindictive or exemplary damages." Attorneys' fees are not allowed under this rule as compensation, but rather as punishment for defendant's wrongful and malicious act. In other words, they may be considered in awarding exemplary damages. In the case at bar the plaintiff does not plead malice, nor did he prove such a state of facts as entitles him to recover such damages. There are, it is true, a few cases in which counsel fees are or may be allowed,--as in actions on contracts of indemnity, suits for malicious prosecution in, some states, actions upon attachment bonds, etc.,--but this case does not fall within any of these exceptions. Irlbeck v. Bierl, 101 Iowa 240, 67 N.W. 400; Newell v. Sanford, 13 Iowa 463. The defendant had the right to petition the probate court for appointment as ancillary administrator. Having this right, his motive would not make his conduct actionable. Jayne v. Drorbaugh, 63 Iowa 711, 17 N.W. 433. But if it be conceded that he had no such right, and that his conduct was tortious, yet plaintiff is not entitled to recover attorneys' fees paid by him. Flanders v. Tweed, 82 U.S. 450, 15 Wall. 450, 21 L.Ed. 203; Oelrichs v. Spain, 82 U.S. 211, 15 Wall. 211, 21 L.Ed. 43; Barnard v. Poor, 38 Mass. 378, 21 Pick. 378.

II. Should the appellee be charged with interest on the funds in his hands? The general rule is not to charge executors or administrators with interest when their accounts are settled in the ordinary course, for the reason that they are not at liberty to risk the money belonging to the estate, and are to be always ready to pay it over according to the direction of the will or the orders of the court. If, however, they have made actual use of the funds, or delay paying over balances in their hands after demand, or, without any just reason or excuse, retain the money in their hands unemployed when it ought to be invested or paid over, they are chargeable with interest. Generally speaking, however, an executor or administrator is not prima facie chargeable with interest during the time the law allows for collecting the estate and settling the accounts, which is usually one year after administration is taken. While the estate is in litigation, it is the general rule not to charge interest. The evidence fails to show that the defendant used the money belonging to the estate. On the contrary, it appears that the money was deposited in a bank to the credit of the Jo...