Exceptions from Superior Court, Kent County; Willard B. Tanner, Judge.
JOHNSON, J. This is an appeal by Albert A. Kenyon, administrator of the estate of Thomas E. Kenyon, from a decree of the probate court of East Greenwich, amending and allowing and ordering recorded as amended the third and final account of said Albert A. Kenyon, as administrator of said estate.
The items specified in appellant's reasons of appeal are:
"Because said court amended said account by adding to Schedule A the item, to wit, of 8485.77, and by disallowing and striking
from Schedule B the following items, to wit:
Frank T. Kenyon
|
$ 349 00
|
Estate of Elizabeth N.Kenyon
|
1,834 84
|
Edwaeds & Angell, atty's fees
|
150 00
|
Saml.W.K.Allen
|
150 00
|
Administrator's services
|
1,000 00
|
And amount allowed for monument |
Amount allowed for care of burial |
lot |
—and computing balance in the hands of the administrator at the sum of $5,007.41."
The appeal was heard in the superior court before Tanner, P. J., without a jury, December 20, 1909, and on January 13, 1910, the following rescript was filed: "This case is heard upon the appeal of the administrator from the decree of the probate court of East Greenwich upon the allowance of his third and final account.
"First. As to the interest charged by the probate court in Schedule A, the amount of $485.77. We think under the circumstances that the administrator should pay only 4 per cent. interest compounded semiannually on the $0,000 paid by him improperly, up to the time of the rendering of the decision of the Supreme Court. The payment appears to have been made under a mistake of law, but was not in any way beneficial to the administrator. From the time of the rendering of the decision of the Supreme Court to the time when he filed his final account we think he should be charged with 6 per cent. compound interest. We think he should be allowed 4 per cent. compound interest on bills paid by him from his own funds till he reimbursed himself from the estate.
"Second. As to the services of attorneys in litigating the $6,000 payment. We think these services were for the benefit of the administrator and not for the benefit of the estate. They are therefore disallowed. So far as they are for services in defending the administrator against removal, we think they should be disallowed, since the great delay of the administrator in administering this estate rendered him liable to removal.
"Third. As to the item of $349 for the services of Frank T. Kenyon. If this claim had been allowed by the probate court and we were asked to reopen the account, we would refuse to do so on the authority of Hall v. Anthony, 13 R, I. 224; but it is not a proper claim against the estate and never having been allowed by the probate court, we must refuse to allow it.
"Fourth. As to the item of $1,834.84 paid to the estate of Elizabeth Kenyon. This seems to have been paid as a distributive share in advance of a decree of distribution. It is therefore improperly paid and must be disallowed.
"Fifth. As to the petition for leave to erect a monument and for care of the burial lot. We think the action of the probate court was conclusive (Court & Practice Act 1905, §§ 814 and 969). These items are therefore disallowed.
"Sixth. We do not think the administrator is entitled to any further compensation. His great delay in settling this estate deprives him of consideration in this respect. What he has done since the second account has been for his own benefit.
"Seventh. We are of the opinion that the whole account can be disputed by the appellees, who are not confined to the reasons of appeal filed by the appellant. As before stated, if the taxes and insurance had been allowed by the probate court, we should not feel like disturbing them except for fraud, but they are not proper charges and as the matter is before us de novo, the charges for insurance and taxes on the third account are disallowed.
"Eighth. As to falsifying and surcharging the former accounts. We think the burden was on the appellees to show that the administrator did not account for the interest. He testifies that he did. We shall not therefore charge him with interest on the first account. We think he should be charged with the amount of taxes which he has been allowed in excess of what he actually paid. As to the taxes actually paid by him and allowed in former accounts, we think the case is governed by Hall v. Anthony, 13 R. I. 224.
"Ninth. We do not feel at liberty to revise the charges for services and counsel fees in the second account. The second account was filed in time but not sworn to until afterwards. We think it would be unduly technical to hold that under such circumstances the administrator is entitled to no compensation; neither is it clear from the testimony that he gave no satisfactory reason for not swearing to it before. Decree may be entered in accordance with this decision."
To this decision both the appellant and the appellees duly excepted. The appellant's exceptions are set out in his bill of exceptions, as follows:
"The court ruled and decided that the administrator should pay to the estate 4 per cent. compound interest on the $6,000 paid by him improperly up to the time of the rendering of the decision by the Supreme Court, and from the time of rendering such decision by the Supreme Court to the time when he filed his final account he should be charged 6 per cent. compound interest. To which ruling the appellant then and there excepted.
"The court ruled that the bill of three hundred ($300) dollars for legal services charged in the administrator's account should not be allowed, and disallowed the same. To Which ruling the appellant then and there excepted.
"The court ruled further that the item of three hundred and forty-nine ($349) dollars, the bill of Frank T. Kenyon, should not be allowed in said account, and disallowed the same. To which ruling the appellant then and there excepted.
"The court further ruled that the item of eighteen hundred thirty-four and eighty-four one-hundredths ($1,834.84) dollars, the amount
paid the estate of Elizabeth N. Kenyon, ought not to be allowed in said account, and disallowed the same. To which ruling the appellant then and there excepted.
"The court further ruled that the decision of the probate court in the matter of the application for leave to erect a monument at the grave of the intestate, and for an allowance for the care of the burial lot, was conclusive under the provisions of sections 814 and 969 of the Court & Practice Act 1905, and they must therefore be disallowed, and so disallowed them. To which ruling the appellant then and there...
