Jacobs v. Jacobs

• Decision Date: 19 January 1926
• Docket Number: No. 5398-A,5398-A
• Citation: 100 W.Va. 612
• Court: West Virginia Supreme Court
• Parties: Winnie M. Jacobs, Adm'x, v. Florence Ward Jacobs et al. (Two Cases)

100 W.Va. 612

Winnie M. Jacobs, Adm'x,

v.Florence Ward Jacobs et al. (Two Cases)

No. 5398-A

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1925.

Decided January 19, 1926.

1. Attorney and Client Receivers Trusts Generally Application for Allowance of Counsel Fees, and Trustee's and Special Receiver's Claims, May be Presented Informally by Petition or Motion.

Generally application to the court for allowances of counsel fees, and trustee's and special receiver's claims, in cases where such allowances are proper, may be presented informally by petition or motion, and without process against the parties to the suit; if the parties have actual notice, this is all that is required, (p. 618).

(Attorney and Client, 6 C. J. § 335 [Anno]; Receivers, 34 Cyc. p. 473; Trusts, 39 Cyc. p. 497 [Anno].)

2. Same Attorney Employed by Executor or Administrator to Prosecute Suit to Subject Realty of Decedent to Payment of Debts of Estate Held to Have no Retaining Lien or Charging Lien on Such Land or Proceeds Thereof.

An attorney employed by an executor or administrator to prosecute a suit to subject the real estate of the decedent to the payment of the debts of the estate, has no retaining lien or charging lien on such real estate or the proceeds of the sale thereof made by him or otherwise, (p. 619).

(Attorney and Client, 6 C. J. §§ 385 [Anno]; 397 [Anno].)

3. Executors and Administrators Decree Allowing Executrix's Attorney Fees for Services in Suit to Subject Decedent's Land to Debts of Estate Held Error.

Nor was the court below, upon principles of equity, or upon any principles, justified in decreeing to plaintiff's attorney, to be paid out of the funds in his hands as special commissioner, the proceeds of the sale of said lands, the sum of $3,000.00 for services rendered in the cause. The will invested the executrix with power to sell the real estate to pay the debts if necessary, and no suit was necessary for any purpose, the statute providing ample means for auditing the accounts of the executrix and the claims of creditors, (p. 620). (Executors and Administrators, 24 c. J. § 931 [Anno].)

4. Same Allowance of Any Compensation to Attorney Representing Creditors of Estate in Way, Inconsistent with Obligations to Executrix Held Error.

And under the facts and circumstances disclosed in this case, and particularly the fact that the plaintiff's attorney undertook to represent creditors of the estate of the decedent in a way wholly inconsistent with his duties and obligations to the interests of the estate, it consituted reversible error for the court to allow him any compensation out of the proceeds of the sale of the lands belonging to the said estate, (p. 623).

(Executors and Administrators, 24 c. J. § 931 [Anno].)

5. Appeal and Error Deposits in Court In case of delay of Several Months Before Decree of Distribution of Proceeds of Real Estate Can be Executed, Trial Court Shoidd Invest or Loan Funds; Failure of Trial Court to Invest or Loan Funds from Sale of Real Estate Subject to Distribution May be Corrected on Appeal.

Where pending an appeal and supersedeas, it is apparent that several months must elapse before the decree of distribution of the proceeds of the sale of real estate sold in the cause can be executed, the court below, on the application of the parties interested therein, should invest or loan out the funds in the hands of its special commissioner or special receiver, thereby to protect the interested parties from loss of interest on the fund and consequential damages; and its failure to do so may as far as possible be corrected here on appeal, (p. 624).

(Appeal and Error, 4 c. J. § 2829; Deposits in Court, 18 C. J. § 31 [Anno].)

(Note: Parenthetical references by Editors, C. j. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Marion County.

Petition by Winnie M. Jacobs, executrix of George M. Jacobs, deceased, for assignment of dower, opposed by Florence Ward Jacobs and others. From part of a final decree awarding Harry Shaw, attorney for the petitioner, counsel fees to be paid out of funds in his hands as special commissioner, Morgan Billingsley and others appeal. From a supplemental decree dismissing a petition of M. L. Hutchinson and others with respect to investment of cash payments made on realty of decedent sold in the cause, the First National Bank of Point Marion and others appeal.

Decrees reversed; cause remanded.

Tusca Morris, Meredith & Bell, M. W. Ogclen, Charles Powell, Brooks S. Hutchinson, W. II. Conaway, Frank C. Haymond, Trevey Nutter, A. J. Co'born, and George Henderson, for appellants.

Harry Shaw, for appellee. Harry Shaw, amicus curias.

Miller, Judge:

This appeal is by Morgan Billingsley and ten banking institutions, creditors of the estate of George M. Jacobs, deceased, from so much of the final decree of February 4, 1925, as decrees to Harry Shaw, attorney for Mrs. Winnie M. Jacobs, Executrix, plaintiff, the sum of three thousand dollars ($3,000.00) to be paid out of the funds in his hands as special commissioner, the proceeds of the sale of the real estate of said decedent, decreed to be sold by him in said cause.

The record shows that the decree in favor of said Shaw was pronounced solely upon his ex parte affidavit presented and filed in the cause after the report of the master commissioner and the decree thereon settling the accounts of the executrix and determining the real estate owned by the decedent and the debts and liens and the order of their priority thereon. There was no formal petition or other pleading presented by said Shaw, nor any process summoning appellants or other interested parties to answer the same. The claimant to this allowance relied solely upon said affidavit and what the record of the cause disclosed, as to the amount and value of his professional services rendered in the cause on behalf of plaintiff therein.

In their petition for appeal presented in this court and assigning error in the decree, the whole record in the cause is vouched as the foundation for their opposition to the allowance of counsel fees out of said funds. They call our attention to the fact that the suit was instituted by said Shaw on behalf of the executrix in 1916, and allowed to drift along, with but little, if anything, being done until May 15, 1919, when a guardian ad litem was appointed for the infant defendant Florence Ward Jacobs, and a decree of reference entered, which was never executed on account of the death of the commissioner to whom the cause was referred, and that nothing of consequence was done thereafter until in 1921, when another decree was made appointing another commissioner to execute the decree, who because of other duties was unable and failed to do so, so that the cause was not further prosecuted until on September 16, 1921, when the cause was referred by another decree to Clay D. Amos, who proceeded and made up his report on the matters referred to him, and which report showed payments by the said executrix to said Shaw for professional services, and for which he had given her credit in her executorial accounts, sums aggregating $3,725.25.

It was further pointed out in said petition that said Shaw by the decree of sale of said real estate, consisting of a large office building in the City of Fairmont and a residence property, had been appointed special commissioner to make sale thereof, and from which he realized for said office building $151,000.00, and for the residence property, purchased by the widow and executrix, the sum of $22,000.00, and that said Shaw was allowed and decreed as said special commissioner for making said sales the sum of $8,658.00.

The petition directs attention to the fact that on the filing of appellees affidavit for an allowance of $3,000.00 additional out of said funds, petitioners appeared by counsel and objected, and protested against such further allowance for instituting and prosecuting said suit, but that the court, by the decree complained of, made the additional appropriation of said sum to said Shaw, whereby appellants were deprived of that amount as a credit upon the sums decreed to them in said cause, which debts aggregated a sum in excess of $200,-000.00.

The specific errors assigned and relied on to reverse the decree, set forth in the petition and reiterated in the brief of counsel are:

First, the consideration of the motion of said Shaw, and of his affidavit in support thereof, and the allowance to him out of said funds of the additional sum of $3,000.00.

Second, the allowance of said additional sum of $3,000.00 out of said funds and directing payment thereof before applying any of said funds to the payment of the debts decreed in favor of appellants, the creditors of said estate.

Third, for errors apparent on the face of the record.

Though not mentioned specifically in said petition or brief, counsel in oral argument urged as an additional ground for reversing the decree and denying the additional allowance to appellee, that it appeared from the record that while acting as attorney for said executrix in the institution of this suit and professing to represent said estate therein, the record in the cause shows that he had represented before the commissioner interests antagonistic to said estate, and had appeared and proved before said commissioner claims against the estate, which had gone undefended by him or other counsel, as follows: Charles W. Robinson, $7,634.17; First National Bank of Mannington, $7,148.35; First National Bank of Frostburg, Maryland, $14,321.34; and Dora L. Holt, $5,-517.78: aggregating $34,812.18. Furthermore, the record discloses, in a petition filed in the cause by said Winnie M. Jacobs, setting rip a claim of dower in said real estate, regardless of the provisions made for her in the will, that Victor A. Shaw, a son of said appellee, appeared as her counsel, and the latter appeared as counsel for the defendant Charles W. Robinson, in opposition to the petition of Mrs....