Grandy v. Grandy

• Decision Date: 09 June 1941
• Citation: 15 S.E.2d 66
• Parties: GRANDY. v. GRANDY.
• Court: Virginia Supreme Court

15 S.E.2d 66

GRANDY.

v.GRANDY.

Supreme Court of Appeals of Virginia.

June 9, 1941.

Appeal from Corporation Court of Norfolk; Richard B. Spindle, Judge.

Proceeding in the matter of the estate of W. B. S. Grandy, deceased, wherein C. W. Grandy, appointed executor and trustee, filed settlement, and wherein Selina J. Grandy, widow of the deceased, filed objection to the commissions allowed the executor. From the decree, Selina J. Grandy appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING and SPRATLEY, JJ.

Henry Bowden, of Norfolk, and Christian, Barton & Parker, of Richmond, for appellant.

Savage & Lawrence, of Norfolk, for appellee.

HOLT, Justice.

W. B. S. Grandy of Norfolk died on May 16, 1938, leaving to survive him a widow, Selina J. Grandy, but no children. His last will and testament of date August 10, 1937, was duly admitted to probate on May 19, 1938, in the Corporation Court of the city of Norfolk. By it he appointed his brother, C. W. Grandy, executor and trustee, and requested that he be permitted to qualify without security. He did qualify and in due course proceeded to have the estate of his decedent appraised.

The items which went to make up this estate were valued at these sums: Real estate, $150,747.87; intangible personal property, $527,514.23; and tangible personal property, $30, a total of $678,292.10.

Afterwards, and in proper time, the appellee placed his transactions before Thomas H. Willcox, Commissioner of Accounts. The settlement of that commissioner the court confirmed. By way of commissions the executor was allowed 5% of the appraised value of all intangible personal property, plus 5% on income received during the course of administration, in all $26,377.21. This the widow contends is excessive.

There was given to her the residence near Virginia Beach and tangible personalty. Other real estate the executor was to hold as trustee and to pay to her the income therefrom for life. She was also given one-half of the intangible personalty. Of that remaining one-half went to his brother, C. W. Grandy, one-fourth to his nephew, W. Selden Grandy, and one-fourth to his niece, Julia Selden Grandy. This real estate in which the widow had a life interest went at her death in fee one-half to his brother, C. W. Grandy, and one-fourth each to the named niece and nephew.

Compensation to fiduciaries is not fixed by statute and turns upon the facts in each case. It must be reasonable.

"The value of the estate, the character of the work, the difficulties encountered, and the results obtained must all be remembered in reaching a judgment. The report of the commissioner must stand unless it is erroneous on its face. Compensation to fiduciaries is a veritable well-spring of litigation." Trotman v. Trot-man, 148 Va. 860, 139 S.E. 490, 492.

In the recent case of Powers v. Powers, 174 Va. 164, 3 S.E.2d 162, 164, we said:

"In Young v. Bowen, 131 Va. 401, 108 S.E. 866, we expressly held that the ex parte settlements of the commissioner of accounts are presumed to be correct until surcharged and falsified, and not only the duty of specifying errors, but also the onus probandi devolves on the party complaining. Cited to sustain the rule are Peak v. Hickle, 9 Grat. 437, 50 Va. 437; Corbin v. Mills' Ex'rs, 19 Grat. 438, 60 Va. 438."

This presumption is strengthened by the approval of the trial court.

That statute applicable, Code, section 5425, reads:

"The commissioner, in stating and settling the account, shall allow the fiduciary any reasonable expenses incurred by him as such; and also, except in cases in which it is otherwise provided, a reasonable compensation, in the form of a commission (on receipts), or otherwise."

"In Virginia the practice is to allow 5 per centum commission upon receipts, unless reason to the contrary is shown." Harris v. Citizens Bank & Trust Co., 172 Va. 111, 200 S. E. 652, 660. And in support of the conclusion there reached are cited Cannon v. Searles, 150 Va. 738, 143 S.E. 495, and Allen's Ex'x v. Virginia Trust Co., 116 Va. 319, 82 S.E. 104.

In Jones v. Virginia Trust Co., 142 Va. 229, 128 S.E. 533, 535, in an opinion by Campbell, J., now Chief Justice Campbell, he in a careful review of many decisions dealing with this subject, said:

"From a very early period, beginning with the case of Granberry v. Granberry, 1 Wash. (1 Va.) 246, 1 Am.Dec. 455, to the recent case of Williams v. Bond, 120 Va. [678] 686, 91 S.E. 627, a commission of 5 per cent. upon receipts has been the measure of compensation allowed a fiduciary, except under peculiar circumstances, when the commission or compensation has been increased or reduced as the exigencies demanded. The cases on the question of compensation to fiduciaries, where distribution of the estate is made in kind, are not altogether in harmony."

His conclusion is that in the absence of special circumstances a fiduciary is entitled to a commission of 5% on intangibles. If he sells real property he is also entitled to 5% on the proceeds of sale. If he has the right to sell, he is entitled to a like commission on its fair value, even though the beneficiary elects to take in kind; otherwise to a reasonable compensation. Trotman v. Trotman, supra, and Mapp v. Hickman, 164 Va. 386, 180 S.E. 296.

In the instant case, the executor had testamentary authority to sell and to reinvest the proceeds of sale both of intangibles and of real estate, with the exception of the home and of tangible personalty valued at $30.

C. W. Grandy, the executor, and W. B. S. Grandy, the testator, are scions of an old and distinguished Norfolk family, members of which through generations have accumulated and amassed large fortunes begun by their great-grandfather, which passed to them from generation to generation. Decedent's estate was widely invested. An itemized statement covers many typewritten pages. For fifteen years the executor had been the agent of the testator and most of the estate represented investments made by him, and of it he was custodian. During the process of administration he has sold securities in the amount of $184,389.02 and has paid for others amounting to $5,285.06. Because of these transactions and because of the advance in value of other securities held, the corpus of the estate has been increased by $24,122, and on this increase no commission has been charged.

This excerpt from the executor's testimony explains itself:

"By Mr. Savage:

"Q. Mr. Grandy, in addition to the five per cent on the principal of these intangibles, I notice that exception is made to an amount paid to yourself from yourself as executor, of $459.14, stated in the report as 'salary to March 31, 1939.' Will you please state what that item covers? A. That covers five per cent on income collected for the estate from December 31, 1938, to March 31, 1939, in the amount of $9,182.05, five per cent of which is the amount.

"Q. In other words, do I understand that that five per cent represents five per cent on the income of the estate collected by you as executor? A. Correct

"By Mr. Barton:

"Q. Prior to your brother's death? A. No. That is for the period from December 31, 1938, to March 31, 1939.

"By the court:

"Q. Why do you call it 'salary'? A. Well, just to differentiate on the books between that and the commission charged by the executor for his acts as executor. I just wanted those two things to be clear. I did not think it made any difference what name I gave it--simply a style of accounting.

"By Mr. Savage:

"Q. The item, whatever it is called, whether 'salary' or 'commissions, ' is computed and...