Lake's Adm'r v. Pattie

• Decision Date: 12 March 1914
• Parties: LAKE'S ADM'R. v. PATTIE et al.
• Court: Virginia Supreme Court

(116 Va. 130)

81 S.E. 78

LAKE'S ADM'R.

v.PATTIE et al.

Supreme Court of Appeals of Virginia.

March 12, 1914.

1. Executors and Administrators (Sill*)— Allowance for Counsel Fees—Benefit to Estate.

The administrator of a husband employed counsel to defend a suit by the administrator of the wife to recover debts claimed by the wife, to subject a fund arising from the sale of land conveyed by the husband to a trustee for creditors, etc., and to marshal assets for the creditors. The executors and distributees, of which the wife was one, were made parties, but made no defense. Counsel, nine months after suit, compromised it by awarding the wife's estate a portion of the trust fund, and paying the remainder into the husband's estate, which resulted in a 60 to 70 per cent, reduction in the amount claimed. Held, that the husband's administrator was justified in paying counsel a reasonable counsel fee from such estate, to be paid before the creditors or distributees were paid anything; and the contention that the estate of the wife as distributee received no benefit from such service was unavailing.

(Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 448-462; Dec. Dig. § 111.*]

2. Executors and Administrators (§ 433*)— Duty to Defend Suit.

The personal representative of a decedent's estate is not a mere stakeholder, but is the legal owner of the personal estate, and the fact that a creditor who sued to enforce a claim against the estate was also a distributee would not render it any less the duty of the personal representative to make defense.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1692-1697; Dec. Dig. § 433.*]

3. Executors and Administrators (S 269*)— Compromise and Settlement — Power to Make.

The administrator of a husband, who defends a suit by the administrator of the wife to recover from the estate debts, and to marshal assets for creditors, the creditors and distributees of the husband's estate being made parties, but making no defense, has the power, if actingin good faith, to bind such creditors and distributees by a compromise and settlement.

(Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 941, 1092; Dec. Dig. § 269.*]

4. Appeal and Errob (§ 1106*)—Disposition of Cause—Remand with Directions. Where the question in litigation is the reasonableness of counsel fees allowed in a suit by an administrator, and the record is so incomplete that the court could not safely pass on the question, the case will be remanded, with directions to ascertain by reference what would be a reasonable amount.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4386-4398, 4585; Dec. Dig. §§ 1106.*]

Appeal from Circuit Court, Madison County.

Suit by the administrator of Ann V. Lake against D. H. Pattie, administrator d. b. n. of R. P. Lake, and others. From a decree overruling exceptions to a commissioner's report, plaintiff appeals. Affirmed in part, and remanded.

John S. Barbour, of Fairfax, and J. G. Hiden, of Culpepper, for appellant.

Browning & Browning and E. H. De Jarnette, Jr., all of Orange, for appellees.

BUCHANAN, J. This is an appeal from a decree of the circuit court for Madison county, which overruled exceptions to a commissioner's report in which a fee of $3,500 paid by D. H. Pattie, sheriff of Madison county, and, as such, administrator de bonis non of R. P. Lake, deceased, to his counsel had been allowed.

The fee in question was excepted to by the appellant, as administrator of Mrs. R. P. Lake, deceased, upon three grounds:

"First. Because no part of said fee should be charged against the distributive share of Ann V. Lake; but all should be charged against the distributive share of the heirs at law of R. P. Lake.

"Second. Because so far as the exceptor is concerned he received no benefit from said services.'

"Third. Because the fee is exorbitant and excessive under all the circumstances of the case."

This suit, in which the said fee was allowed, was brought by the appellant, as administrator of Mrs. Ann V. Lake, deceased, for the purpose of asserting debts claimed to be due his decedent's estate from the estate of her late husband, R. P. Lake, deceased, to subject a fund arising from the sale of an interest in certain real estate conveyed by her husband to Rixey, trustee, to secure certain creditors, including his liabilities to his wife, Mrs. Ann V. Lake, for moneys loaned and suretyship undertaken by her, and, if the moneys and choses in action, etc., in the hands of Rixey, trustee, were not sufficient for that purpose, to subject the other assets of her husband's estate to their payment. The bill further asked that, in the event the property in the hands of Rixey, trustee, was more than sufficient to pay the liens thereon under the deed of trust to him, the surplus of that fund should be distributed to those entitled thereto, and to that end that all the creditors of R. P. Lake's estate be convened, the assets of his estate marshaled, and all of his debts paid, that all proper accounts be taken, an adequate attorney's fee to the appellant's counsel for instituting and conducting the suit be allowed, and for general relief.

The creditors, heirs at law and distributees of R. P. Lake, deceased, known and unknown, were made parties to the suit Process as served upon the resident defendants, viz., Pattie, administrator of R. P. Lake, Rixey, trustee, and Bickers, a creditor, and order of publication made against all the other numerous defendants, known and unknown, as nonresidents. So far as the record before this court shows, which is incomplete, none of the defendants appeared except Pattie, administrator of R. P. Lake, who employed counsel and made defense to the claim asserted as creditor by the appellant.

Some nine months after the suit was brought and before any depositions had been...