"Decedent died in August, 1930, leaving a will naming as executors and testamentary trustees, the Empire National Bank of Clarksburg, West Virginia, Melvin G. Sperry and the respondent. The property of the estate consisted principally of fairly large real estate holdings, securities and life insurance. The will provided that the residue of the estate should be held in trust with a provision for support of the widow and children. The trust is to continue until January, 1951. The will authorized the executors and trustees to carry on any business or financial affairs in which the decedent might be interested at the time of his death `as fully and to the same extent as I could or might do if still living'. The will gave the trustees rather broad discretionary powers.
"Shortly after the executors were appointed, disagreements developed between the respondent and the other two. A suit was instituted by the respondent, as executor, together with the widow and children, for the removal of the two other executors, who were removed in December, 1933. Since that time the respondent has acted as sole executor and testamentary trustee.
"The estate included the capital stock of several land companies and a majority of the class `A' common stock of the Clarksburg Publishing Company which publishes three papers. The class `A' stock has equal representation on the board of directors of the publishing company with the class `B' stock, which is owned by other interests. The `A' stock is representative of the Clarksburg Telegram and the `B' stock represents the Clarksburg Exponent.
"Respondent has been president of the Clarksburg Publishing Company since June, 1934, a director since January or February, 1934, and in addition has directed the policies of the Clarksburg Telegram since he became sole executor and testamentary trustee of the estate in January, 1934. As president he has about one hundred and sixty-two employees of the company under his general supervision and direction, including the editorial force and all departments. Respondent devotes substantially all of his time to the management of the real estate items of the estate, supervising the Clarksburg Publishing Company, and directing the affairs and policies of the Clarksburg Telegram. He arrives at the plant by 6:30 or 6:45 each morning, examining every editorial, visiting the plant two or three times a day, conferring with the editor, and keeping in touch with the paper's affairs at all times throughout the day. Decedent for many years had directed the policies of the Clarksburg Telegram and was president of the Clarksburg Publishing Company from its organization in 1927 until his death.
"The Clarksburg Publishing Company did a gross business of $531,390.25 in 1935 and $603,804.97 in 1936. The estate received as dividends from the Clarksburg Publishing Company $11,051.58 in 1935 and $54,000 in 1936 which constituted a substantial part of the total income of the estate.
"In addition, the estate owns 472 shares out of a total of 2,500 shares of common stock of the Empire National Bank of Clarksburg. It was organized in 1903 by the decedent, who was its president from 1903 until his death. With the exception of the year 1933, respondent has been a director of that bank since 1903.
"In 1935 and 1936 the estate paid attorneys' fees in the respective amounts of $3,522 and $7,068.03 in connection with the following four lawsuits:
"1. To restrain Melvin G. Sperry and the Empire National Bank from voting class `A' common stock of the Clarksburg Publishing Company owned by the estate, Sperry having been appointed by the Bank voting trustee of this stock. (`Voting Trust suit'.)
"2. To remove the Empire National Bank and Melvin G. Sperry as executors of the estate. (`removal suit'.)
"3. To resist creditors' suits instituted for the immediate liquidation of the estate. (`liquidation suit'.)
"4. To resist actions at law against certain land companies, in all but one of which the estate owned all the stock. In the one company the estate owned nearly 50 percent of the stock. (`Land Companies suit'.)
"`Voting Trust suit'. — The first of these suits was for the purpose of appointing a voting trustee for the 1,800 shares of class `A' common stock of the Clarksburg Publishing Company, of which the estate owned 1,656 shares. After decedent's death the three coexecutors disagreed as to who should be named voting trustee and as a result there was no trustee representing this stock from 1930 to 1932, and no directors or officers were elected. Decedent's heirs and all owners of class `A' stock petitioned to have respondent appointed trustee. While this suit was pending, Sperry and the president of the Empire National Bank, Sperry and the bank being coexecutors, appointed Sperry voting trustee. Respondent then obtained an injunction restraining Sperry from acting, and eventually another trustee friendly to the respondent's interests was appointed and confirmed by the State Supreme Court of Appeals in Highland v. Empire Bank, 114 W. Va. 473, 172 S.E. 544.
"`Removal suit.' — The second suit, similarly styled, and nearly contemporaneous with the first, was to remove Sperry and the bank as coexecutors. Respondent had objected to an attempted sale by one of his coexecutors of the Clarksburg Publishing Company stock to an outsider. The bank's president was so involved with Sperry in business matters that these two executors acted together, and against respondent. Respondent's two coexecutors were removed in this suit, which also reached the State Supreme Court of Appeals, Highland v. Empire Bank, 114 W.Va. 498, 172 S.E. 551.
"`Liquidation suit'. — During the pendency of the `Removal suit', the two coexecutors had advertised for sale on September 23, 1933, at the court house door nearly all the assets of the estate, including the Clarksburg Publishing Company stock and the Empire National Bank stock. Respondent sought and obtained an injunction pending the outcome of the `Removal suit.' At that time the general economic depression had affected the values of all stocks.
"`Land Companies suit'. — At the same time the coexecutors had obtained consent of certain creditors of decedent's wholly owned or controlled land companies to bring creditors' suits in their names in the West Virginia county courts against the real estate companies, and defense of these suits became necessary. Respondent retained counsel and paid counsels' fees.
"In addition respondent paid $1,000 and $105 in 1935 and $4,750 in 1936 as attorneys' fees and advanced attorneys' expenses in a suit against J. Horner Davis in which the respondent sought to set aside a purported sale in February 1935, of 568 shares of the class `A' common stock of the Clarksburg Publishing Company pledged by the decedent to secure a note which was renewed by his executors in the principal amount of $45,000 and to redeem the pledged stock of the estate. Davis, the voting trustee of class `B' stock of the Clarksburg Publishing Company, had bought the note for its principal amount plus interest then accrued, $45,360, and met with the board of directors of the Exponent Company, which voted to take over the stock pledged for this note. Respondent, until then unaware of the sale, instituted suit to redeem the stock, alleging that the stock had a much higher market value. Ownership of this stock will determine ownership of the Clarksburg Publishing Company after the trust agreement determines. sic The county court granted respondent's petition for an injunction against the stock transfer and impounded the stock dividends. The suit was pending at the time of the hearing in this proceeding.
"Also attorneys' fees in the amount of $300 for 1935 and $303.75 for 1936 were paid by the estate in a suit by E. A. Bowers against respondent, in which suit respondent resisted Bowers' claim for attorneys' fees for legal services in connection with the `Removal' and `Voting Trust' suits.
"In 1936 respondent paid $251.25 as attorneys' fees in settling the claim of Lillie Denham against the estate. Her claim against the estate, based on improper acts of decedent as executor of her husband's estate, was for about $17,000 and was compromised for about $10,000.
"In 1935 the estate also paid $1,160.79 as miscellaneous expenses in the `R...
