In re Palmer

• Decision Date: 17 May 1913
• Citation: 86 A. 919,110 Me. 441
• Parties: In re PALMER.
• Court: Maine Supreme Court

86 A. 919

110 Me. 441

In re PALMER.

Supreme Judicial Court of Maine.

May 17, 1913.

Appeal from Supreme Judicial Court, York County.

Judicial settlement of the second account of Francis Palmer and others, executors of the will of Elizabeth C. Palmer, deceased. From an order settling the account, the executors and Clinton C. Palmer prosecuted cross-appeals to the Supreme Court of Probate, and from the decree Clinton C. Palmer appeals. Exceptions relating to expenditures in the case of Holcomb against Palmer overruled, and other exceptions sustained.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, and KING, JJ.

Clinton C. Palmer, of Biddeford, pro se. Robert B. Seidel, of Biddeford, for Bartlett Palmer.

Cleaves, Waterhouse & Emery, of Biddeford, and James O. Bradbury, of Saco, for Francis Palmer and others.

SAVAGE, C. J. There were cross-appeals from the allowance of the second account of Francis Palmer, Chase Palmer, and Chase Eastman, executors of the last will and testament of Elizabeth C. Palmer. In their account the executors charged themselves with balance of their former account and sundry items received since, amounting in the aggregate to $18,538.85, and asked to be allowed for sundry items of credit, amounting to $4,042.70. The judge of probate disallowed certain of the credit items, and modified others, and allowed credit in the whole for the amount of $2,490.01. Separate appeals from this decree were taken by the executors, and by Clinton C. Palmer, beneficiary under a trust created by the will, in the residuum of the estate.

The appeals were heard in the Supreme Court of Probate, and a decree made. The decree confirmed for the most part the allowance of credit items made by the judge of probate. Other items were modified and corrected. The amount of credits allowed by the Supreme Court of Probate was $2,394.22. The executors abide by this decree. But Clinton C. Palmer excepted to the allowance of seven items, and with these items alone are we now concerned. His bill of exceptions was allowed by the presiding justice, "if allowable." Under these exceptions only questions of law are open for determination. The findings of the justice presiding in the Supreme Court of Probate in matters of fact are conclusive, if there is any evidence to support them. And when the law invests him with the power to exercise his discretion, that exercise is not reviewable on exceptions. If he finds facts without evidence, or if he exercises discretion without authority, his doings may be challenged by exceptions. Small v. Thompson, 92 Me. 539, 43 Atl. 509; Eacott, Appellant, 95 Me. 522, 50 Atl. 708; Dunlap, Appellant, 100 Me. 397, 61 Atl. 704; Costello v. Tighe, 103 Me. 324, 69 Atl. 269.

The long-continued contention between Clinton C. Palmer and the executors of his mother's will has appeared in this court in several cases. Holcomb v. Palmer, 106 Me. 17, 75 Atl. 324; Palmer, Appellant, v. Palmer, 106 Me. 26, 75 Atl. 130, 19 Ann. Cas. 1184; and Haley v. Palmer, 107 Me. 311, 78 Atl. 368. The first case was a trustee process at law wherein a creditor of Clinton C. Palmer summoned and sought to hold these executors as trustees of Palmer, on account of property or funds of the estate in their hands as executors. The trustees were discharged. The second case was an appeal by Clinton C. Palmer from the allowance of the executors' first account. The court made no decree as to allowance of costs or expenses to the executors. The third case was a bill in equity, in the nature of an equitable trustee process, as it is called, wherein a creditor of Clinton C. Palmer sought to impress a creditor's equitable lien upon certain stocks and other property in the hands of the executors, and Clinton C. Palmer's trustee, and have the same applied to the payment of his debt. The executors, one of whom was the trustee, were parties defendant. The bill was sustained as to the trustee, which produced funds sufficient for the purposes of the case. No allowance of costs or expenses was made to the executors.

Many of the credits claimed in the present account were for expenses incurred in connection with these three proceedings. Some of the items were disallowed by the Supreme Court of Probate, under the rule stated in Peabody v. Mattocks, 88 Me. 164, 33 Atl. 900. It is now claimed that some items allowed should have been disallowed under the same rule. That rule is that after the settlement, on appeal, of the account of a testamentary trustee or an executor, in the decree for which no provision was made for the payment of the expenses and counsel fees of the accountant in that proceeding, neither the judge of probate nor the Supreme Court of Probate has power, in the settlement of a subsequent account, to allow him credit for such expenses and counsel fees, either in connection with the hearing before the judge of probate or on appeal. Such expenses and counsel fees must be allowed, if allowed at all, in the proceeding in which the expenses were incurred, and the services of counsel were rendered. Whether they shall be allowed at all rests in the discretion of the court, and that discretion can be exercised only by the court that heard the case. If the decree of the court is silent as to the allowance of expenses, it is to be assumed that the court determined that expenses should not be allowed. Silence is denial. The rule is the same in equity.

This rule is applicable to expenses incurred in connection with the settlement of the first account, Palmer v. Palmer, and the equity suit, Haley v. Palmer. But it is not applicable to expenses incurred in the Holcomb Case. The statute provides that one who is summoned as a trustee in a suit at law may, if he discloses in accordance with the statute requirements, retain his costs, that is, his taxable costs, out of the fund, if he is charged as trustee, or recover them of the plaintiff, if he is discharged. But there is no legal method by which he can have his personal expenses or expenses of counsel, if he finds them necessary, allowed to him out of the fund, or taxed as costs against the plaintiff.

Three of the plaintiff's exceptions relate to expenses incurred by the executors in the Holcomb Case, namely, expenses for counsel fees, for printing the case for the law court, and for typewritten briefs. Whether that kind of expenses might be allowed at all, and whether the question of their allowance is properly raised by the appeals, are questions of law, and are open to present consideration. How much should be allowed, if any is legally allowable, and the propriety of allowance, depend upon questions of fact, and the conclusion of the presiding justice thereon is conclusive, if there is any testimony to support it. See cases cited, supra.

We think that, when executors are summoned in a suit at law as trustees of a legatee interested in the residuum of the estate, they may not only deny their liability, but they may, in proper cases, contend against it. And for that purpose they may employ counsel. It is their duty to conserve the estate. Though it may turn out in the end that only the interest of that particular legatee might be affected, nevertheless it might turn out that there would be no residuum, and that the entire body of the estate would be required for payment of debts and other expenses of general administration. There may be other reasons, but this is sufficient. It is not necessary now to consider what would be the duties of executors after full administration and order for distribution of the...