Johnson v. Ducobu
| Decision Date | 22 May 1953 |
| Citation | 258 S.W.2d 509 |
| Parties | JOHNSON et al. v. DOUCOBU. |
| Court | United States State Supreme Court — District of Kentucky |
Nat Ryan Hughes, Murray, for appellants.
Flavius B. Martin, Farland Robbins, Mayfield, for appellee.
Mittie Griffith Ducobu died intestate on November 28, 1948, survived by her husband, Oscar Ducobu, a brother, Ernest Griffith, and a nephew, D. Blythe Johnson, as her only heirs at law. Her husband was appointed administrator of her estate on December 4, 1948, and in this capacity, he distributed most of decedent's property.
On August 18, 1950, the brother and nephew filed a petition in equity against the husband, seeking a settlement of the estate and a recovery in its behalf of certain personal property to which the husband asserted title individually. The issues raised by the answer concerned the decedent's ownership of two diamond rings and a stock certificate. The answer also denied that the amount of money claimed by the heirs was found in a lockbox. These questions were submitted to a jury on an issue out of chancery, and a judgment was entered pursuant to the verdict finding all issues in favor of the husband. The appellant, D. Blythe Johnson, filed a claim for $5,092.72, which he asserts represents expenses incurred by him in the prosecution of the suit. The Chancellor denied payment of the claim, and the appeal is from only that part of the judgment which disallows its payment.
In suits involving the settlement of estates, the Chancellor has a broad discretion in the allowance of costs, and his finding will not be disturbed unless it is apparent that there has been an abuse of discretion. Goodwin's Ex'r v. Goodwin, 301 Ky. 526, 192 S.W.2d 493; KRS 453.040.
Authority for the allowance is claimed under KRS 412.070, which provides:
From all of the opinions of this Court on the subject of allocation of costs, attorney fees, and expenses in suits involving the settlement of estates, no clear rule has emerged. It is probable that the reason for this fact is the practical difficulty of evolving one rule which would fit all cases. Some of the opinions have indicated that allowance of expenses and fees should not be made unless the services have resulted in a benefit to the estate. Johnson v. Ducobu, Ky., 251, S.W.2d 992; Cambron v. Pottinger, 310 Ky. 70, 219 S.W.2d 401.
We are unwilling to go so far as to announce an inflexible rule that direct benefit to the estate must invariably be shown to justify an allowance of costs, attorney fees, or expenses. We do conclude, however, that...
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