Louisville T. Co. v. Fid. & Col. T. Co., Admr.
| Decision Date | 29 May 1925 |
| Citation | 209 Ky. 289 |
| Parties | Louisville Trust Company v. Fidelity & Columbia Trust Company, Administrator, with the Will Annexed of the Estate of Mary Lily Bingham, Deceased. |
| Court | United States State Supreme Court — District of Kentucky |
1. Executors and Administrators — Administrator Appointed Over Objection Not Allowed Counsel Fees in Endeavoring to Maintain His Appointment. — Administrator, securing appointment by court over objection of decedent's husband and who was not designated by decedent, held not entitled to expenses incurred in endeavoring to sustain arbitrary appointment, especially where he qualified at time when nominating order was suspended by pending motion to set it aside.
2. Executors and Administrators — Qualification, Pending Motion to Set Aside Nominating Order, Not a Necessity Justifying Expenses in Attempting to Sustain Appointment. — Where administrator was appointed over objections of decedent's husband, qualification, after motion to set aside nominating order, held not a necessity entitling it to expenses incurred in attempting to maintain appointment, in view of power of court to appoint a curator pendente lite, under Ky. Stats., section 3901.
3. Executors and Administrators — Administrator Not Entitled to Compensation for Services After Suspensive Appeal from Appointment, in Absence of Good Faith. — Administrator appointed over objection of one having superior rights is not entitled to compensation for acts of administration after suspensive appeal from order of appointment, in absence of good faith.
4. Executors and Administrators — Administrator Not Entitled to Compensation for Period Between Motion to Set Aside Appointment and Order Sustaining Motion on Appeal. — Where administrator was appointed by court over objections of decedent's husband, and qualified after motion to set aside appointment had been made, but did not perform any specific administrative acts during period prior to sustaining motion to set aside appointment on appeal to circuit court, compensation could not be allowed.
5. Executors and Administrators — Supersedeas on Appeal from Orders of County Judge Held to Suspend Right to Perform as Administrator. — Supersedeas, issued by clerk of circuit court, on appeal from order of county judge in appointment of administrator, held to suspend right to perform as administrator during pendency of appeal.
6. Executors and Administrators — Suspersedeas in Appeal from County Court to Circuit Held to Suspend Right to Perform Administrative Functions. — In view of Ky. Stats., section 978, authorizing appeal from county court to circuit court in probate proceedings, and Civil Code of Practice, section 724, providing for stay of proceedings on the appeal on execution of bond, supersedeas on appeal from county to circuit court from order nominating administrator held to suspend right to perform administrative functions, and therefore compensation against estate for such acts could not be allowed.
Appeal from Jefferson Circuit Court.
W.W. DAVIES for appellant.
HELM BRUCE, JOSEPH LAURENT and BRUCE, BULLITT & GORDON for appellee.
Affirming.
This case is an aftermath of the one of Louisville Trust Company v. Bingham, 178 Ky. 573 in which it was held that the Jefferson county court was in error in attempting to appoint the Louisville Trust Company coadministrator with the will annexed of Mrs. Mary Lily Flagler Bingham, the deceased wife of Robert W. Bingham, who died a resident of the city of Louisville on July 27, 1917. Prior to her marriage to Mr. Bingham she was the widow Flagler and resided in the state of Florida, where she executed her will, naming two resident citizens of that state as the executors of it. She afterwards added codicils to her will, and on or prior to September 4 following her death the will and codicils were probated in the Jefferson county court, but the nominated executors in the original will were disqualified from serving in this state because of their nonresidency and the only resident individual possessing preferred qualifications for appointment as administrator with the will annexed was the surviving husband, Mr. Bingham, who declined to serve. On the last date mentioned, he with the knowledge and consent of the named nonresident executors designated the defendant and appellee herein, Fidelity & Columbia Trust Company, of Louisville, Kentucky, as a suitable representative of his wife's estate and asked the court to appoint it to that position. The court expressed a willingness to sustain that motion but at the same time announced that he would also appoint the appellant, Louisville Trust Company, plaintiff below, as coadministrator with Mr. Bingham's nominee. He immediately objected to the appointment of plaintiff and there is evidence in the record that his objections were set for hearing the next morning, at which time it was discovered that the appointment had already been made and was put upon the order book and signed by the judge; but whether so or not on the next morning, September 5, Mr. Bingham appeared with his attorneys and moved that the order making such appointment be set aside and the hearing of that motion was set forward to September 19, a space of twelve days. On the day designated the motion was heard and overruled and on the next day an appeal was prosecuted to the Jefferson circuit court from the original order making the appointment, as well as the one overruling the motion to set it aside, pursuant to the right conferred by section 978 of our present statute. At the same time an appeal bond was executed in the circuit court and supersedeas issued and was served on the judge of the Jefferson county court and also on plaintiff, all of which was done on September 20, 1917.
Pending the motion to set aside plaintiff's appointment, and on September 8, three days after the motion was made, it qualified by executing bond and taking the required oath and immediately selected as its attorney to represent it in its fiduciary capacity the same person who had conversed with it in regard to its possible appointment as Mrs. Bingham's local personal representative and who was in attendance at the county court hearing, and who also was a strong personal and political friend of the county judge and he had conversed with that officer relative to the proper course to pursue in the appointment of personal representatives for the estate before the question was presented in court. After the appeal to the circuit court that attorney with two others began the preparation of plaintiff's defense on appeal. They appeared in the circuit court, where the orders of the county court were reversed, and from which an appeal was prosecuted to this court, followed by an affirmance of the judgment of the circuit court which is the reported opinion, supra, in 178 Ky. After the mandate from this court issued plaintiff herein relinquished its efforts and turned over to the Fidelity & Columbia Trust Company a box containing jewels of Mrs. Bingham, which it had on deposit in its safety vault from and after the day succeeding her death and which box was left with it as bailee with one key retained by the depositor and the other by plaintiff.
Afterwards this equity action was brought by plaintiff against the Fidelity & Columbia Trust Company as sole administrator of the estate of Mrs. Bingham for a settlement of its acts and doings pending the controversy of its appointment, and to recover compensation for its services and expenses as well as the services of its attorneys, the chief item of which in the latter claim was counsel fees in representing plaintiff in the contest over its appointment, but in it there were also included services for advice of counsel during that time, and $2,500.00 paid to a New York law firm in an effort to procure for plaintiff the appointment as ancillary administrator in that state, but which proceedings progressed no farther than their inauguration. The petition, as amended, claimed $25,000.00 for services of local counsel, the larger part of which, as we have stated, was rendered in an effort to sustain plaintiff's appointment by the Jefferson county court; $2,500.00 was claimed for the New York lawyers; about $4,500.00 was demanded as reimbursement of plaintiff for premiums paid to surety companies upon its bond which it executed before the county court and other items for expenses incurred, and it also asked for compensation and commission on something over $2,100,000.00 of property which it claimed to have administered upon before its final ouster by this court's opinion. That sum was composed of $608,000.00, the value of the jewelry which it had in its possession in the manner hereinbefore stated, and a deposit account in a New York bank of about $1,500,000.00 which it alleged that it preserved for the estate and kept the Florida representatives from appropriating or otherwise consuming it. The answer denied all of the material averments of the petition and contested the right of plaintiff to recover any sum whatever for any of the items mentioned in its petition. The cause was referred to a special commissioner with authority to take proof, which he did, and subsequently reported disallowing all of plaintiff's claims. It thereupon filed exceptions to the report, which were heard by the chancellor, and he confirmed the report and dismissed the petition from which this appeal is prosecuted.
The questions presented and argued here are: (1), whether plaintiff as the nominated administrator by the county judge, and which nomination was against the consent and over the protest of those having the right to select the personal representative, may nevertheless accept such nomination and qualify itself pending a motion to set aside its appointment and then charge the estate with its counsel fees in bitter litigation contesting its appointment resulting in its defeat? (2), whether plaintiff may recover...
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