Louisville Trust Co. v. Fidelity & Columbia Trust Co.
| Decision Date | 29 May 1925 |
| Citation | 272 S.W. 759,209 Ky. 289 |
| Parties | LOUISVILLE TRUST CO. v. FIDELITY & COLUMBIA TRUST CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County.
Proceedings for allowance of claim of the Louisville Trust Company against the estate of Mary Lily Bingham, deceased. From judgment in favor of Fidelity & Columbia Trust Company administrator with will annexed, disallowing the claim claimant appeals. Affirmed.
W. W Davies, of Louisville, for appellant.
Helm Bruce, Joseph Laurent, and Bruce, Bullitt & Gordon, all of Louisville, for appellee.
This case is an aftermath of the one of Louisville Trust Co v. Bingham, 178 Ky. 573, 199 S.W. 58, 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 with 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, Ky. 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 12 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 Statutes. 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. (199 S.W. 58). 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 was also included services for advice of counsel during that time, and $2,500 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 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 was claimed for the New York lawyers; about $4,500 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 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, 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 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 as compensation for itself or attorneys in looking after the estate between the time of its qualification in the manner stated and the appeal to the circuit court and the superseding of the county court orders. And (3) whether, after such appeal and superseding of the judgment, it could continue to act and recover for its services as well as those of its attorneys. We will consider the questions in the order named.
1. At the beginning of our consideration of question 1, it should be kept in mind that our opinion in the 178 Ky. (199 S. W.) case held, in substance, that Mr. Bingham had the right to designate a suitable person for appointment by the Jefferson county court, and that he did designate such person; that it was the duty of the county court to adopt that designation and not to appoint plaintiff as corepresentative in conjunction with that designated suitable person, and that the court's action in so doing was wrong from the beginning, which necessarily had the effect to so characterize the acts of all persons endeavoring to uphold that wrongful appointment by the county court. It is true that we also held in that opinion that there might be cases of such peculiar circumstances that the county court would be authorized in appointing more than one personal representative, but that the case under consideration was not one of them, and for that reason the judgment of the circuit court so holding was affirmed. With this brief reference to our opinion in the case referred to, we will now proceed to consider question 1, above.
Supporting the right of plaintiff to recover its counsel fees in its effort to maintain its nomination or appointment by the Jefferson circuit court, we are cited to the text in 18 Cyc. 76, saying:
"The better opinion appears to be that an executor or administrator is entitled to reimbursement for the just and reasonable legal expenses incurred in procuring his appointment or qualification in the probate court, although in some jurisdictions this is denied."
In support of the "better opinion" part of the excerpt, note 59 to the text cites Ex parte Young, 8 Gill (Md.) 285, some opinions from intermediate New York courts and some Ohio circuit court opinions. Other cases not found in the note and relied on by plaintiff's counsel are In re Page, 107 N.Y. 266, 14 N.E. 193, and Brown v. McGee, 117 Wis. 389, 94 N.W....
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