Hamilton v. Nunn

• Decision Date: 24 February 1933
• Citation: 247 Ky. 715,57 S.W.2d 655
• Parties: HAMILTON et al. v. NUNN et al.
• Court: Kentucky Court of Appeals

57 S.W.2d 655

247 Ky. 715

HAMILTON et al. v. NUNN et al.

Court of Appeals of Kentucky

February 24, 1933

Appeal from Circuit Court, Metcalfe County.

Settlements filed by J. A. Hamilton, Jr., executor, and Mary Nunn executrix of the will of J. A. Hamilton, Sr., deceased. From the judgment, fixing the commissions of the executor and the executrix and the fees for the attorneys employed by them the executor and others appeal, and the executrix and others cross-appeal.

Affirmed.

John E Richardson, of Glasgow, M. O. Scott, of Edmonton, and R. H Crockett, of Franklin, Tenn., for appellants.

H. L. James, of Elizabethtown, Woodward, Hamilton & Hobson, of Louisville, and A. J. Thompson, of Edmonton, for appellees.

REES Justice.

J. A. Hamilton, Sr., died a resident of Metcalfe county, Ky. on March 26, 1929, leaving an estate valued at approximately $135,000, of which approximately $85,000 was in personalty, and the remainder in real estate located in Metcalfe county. He devised his estate equally to his five children after charging his son, J. A. Hamilton, Jr., with an advancement of $11,350, and his daughter, Mrs. Amanda Thompson, with an advancement of $500. In his will he nominated his son, J. A. Hamilton, Jr., and his daughter, Mrs. Mary Nunn, executors of his will. The will was probated in the Metcalfe county court on April 22, 1929, and Mrs. Nunn declined to act as executrix, and the court refused to permit J. A. Hamilton, Jr., to qualify as executor, on the ground that he was a nonresident of the state, and appointed Mrs. Mary Nunn, Mrs. Nora Thompson, and Mrs. Ethel Davis, three daughters of the testator, administratrices with the will annexed.

J. A. Hamilton, Jr., appealed to the Metcalfe circuit court from the order of the Metcalfe county court, and the circuit court entered a judgment setting aside the order of the county court and directing it to permit J. A. Hamilton, Jr., and Mrs. Mary Nunn to qualify as executors of the will of J. A. Hamilton, Sr. On appeal to this court, the judgment of the Metcalfe circuit court was affirmed. Nunn v. Hamilton, 233 Ky. 663, 26 S.W.2d 526, 530. On the return of the case, J. A. Hamilton, Jr., and Mrs. Mary Nunn qualified as executor and executrix, respectively, of the will of their father, and proceeded to administer the estate. They filed settlements from time to time in the circuit court, where a suit was pending for a settlement of the estate, and it appears that the total amount of personal property converted into cash and distributed by them was $81,028.27. Upon final determination of all questions involved in the settlement suit, the circuit court allowed J. A. Hamilton, Jr., $1,050 commission as executor, and $750 for extraordinary services rendered as executor, or a total of $1,800, and allowed like amounts to Mrs. Mary Nunn, executrix. The attorneys for J. A. Hamilton, Jr., as executor, asked that they be allowed the sum of $7,500 attorneys' fees, and the court allowed them the sum of $3,500. The attorneys for Mrs. Mary Nunn as executrix were allowed the sum of $2,500.

J. A. Hamilton, Jr., has appealed claiming that he is entitled to an additional allowance of commissions as executor, and that the court erroneously refused to allow him credit for expenses incurred by him amounting to $239.89, and his attorneys have appealed from the judgment allowing them only $3,500 attorneys' fees. The appellees, Mrs. Nora Thompson, Mrs. Amanda Thompson, and Mrs. Ethel Davis, by a cross-appeal seek a reversal of so much of the judgment as allows $6,000 for attorneys' fees and $3,600 as commissions to the executor and executrix, and appellee, Mrs. Mary Nunn, by a cross-appeal seeks a reversal of that part of the judgment allowing $3,500 to the attorneys employed by J. A. Hamilton, Jr., and of so much of the judgment as fails to allow the attorneys employed by her one-half of the allowance made for attorneys, and of that part of the judgment allowing J. A. Hamilton, Jr., any compensation for extraordinary services. All of the attorneys are parties to the appeal.

The decedent's personal estate consisted of $20,650 of government bonds, two policies of life insurance for $5,000 each, about $37,000 cash in bank, 55 shares of stock in the Farmers' & Merchants' Bank of Edmonton, appraised at $5,500, 1,050 shares of Inter-Southern Life Insurance Company stock, appraised at $1,050, several small notes, live stock, farming equipment, and furniture and household goods; the whole amounting to approximately $85,000. He also owned 4,000 acres of land in Metcalfe county, which was sold for $50,335.

Appellant J. A. Hamilton, Jr., insists that the allowance to him of $1,800 for services as executor is inadequate, and the appellees claim with equal vigor that the allowance to the executor and executrix should not exceed $1,000 to each. In fixing the compensation of personal representatives, section 3883 of the Kentucky Statutes is controlling. That section provides that the allowance to personal representatives shall not exceed 5 per cent. on all the amounts received and distributed, but an additional allowance may be made if the personal representative has been required to perform extraordinary services. A history of the statutes fixing the compensation of personal representatives may be found in the case of Clay v. Howard's Executor, 247 Ky. 512, 57 S.W.2d 484, decided February 17, 1933.

In Douglas' Administrator v. Douglas' Executor, 243 Ky. 321, 48 S.W.2d 11; Carpenter's Administrator v. Demoisey, 237 Ky. 628, 36 S.W.2d 27; and Evans' Administrator v. McVey, 172 Ky. 1, 188 S.W. 1075, it was said that a personal representative is entitled to a commission of 5 per cent. on the amount distributed by him. In each of these cases the personal estate consisted principally of tangible personal property, notes, stocks, and bonds which the personal representative converted into cash and distributed. It has never been held that a personal representative is entitled to the maximum commission of 5 per cent. where the estate consists principally of cash in bank or property such as government bonds, or insurance policies easily convertible into cash, and the settlement of the estate involved no complications, and we do not think the statute is susceptible of the construction that the maximum commission fixed by the statute must be allowed in every case. Baldwin's Executor v. Barber's Executors, 148 Ky. 370, 146 S.W. 1124.

In the instant case, almost...