McAlear v. McAlear

• Decision Date: 07 February 1939
• Docket Number: No. 7963.,7963.
• Citation: 4 A.2d 252
• Parties: McALEAR et al. v. McALEAR et al.
• Court: Rhode Island Supreme Court

4 A.2d 252

McALEAR et al.

v. McALEAR et al.

No. 7963.

Supreme Court of Rhode Island.

Feb. 7, 1939.

Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Proceeding by Joseph F. McAlear and Joseph C. Cawley, administrators of the estate of Celia B. Kavanaugh, deceased, for a settlement of their final account. On appeal to the superior court from decree of probate court, the first named administrator was allowed a $1,500 fee and the co-administrator allowed a $2,000 fee, and both administrators bring exception.

Exception sustained in part.

Joseph C. Cawley, Francis J. Barlow, and J. Joseph Fitzpatrick, Jr., all of Providence, for appellants.

Edward W. Day, of Providence, for appellees.

MOSS, Justice.

This proceeding is an appeal to the superior court by the two administrators of the estate of Celia B. Kavanaugh, late of the city of Providence, deceased, from a decree of the probate court of that city. By this decree their final account was approved with certain amendments; fees for their services as such administrators were allowed in the amounts of $700 for Mr. McAlear and $1600 for his co-administrator, Mr. Cawley; and a further allowance was made to the former for an attorney's fee in the amount of $1200. This was for the services of an attorney who had acted for and assisted him in the administration of the estate.

The administrators alone took an appeal to the superior court from this decree; and in that court they filed reasons of appeal, in which they specified only that the amendments were contrary to the law and contrary to the evidence, and that the amount of compensation to them, as fixed by the decree, was "inadequate and contrary to the law and the evidence." No one, by any specification of a reason of appeal, attacked the above allowance of $1200 for an attorney's fee. The appeal was tried before a justice of the superior court, sitting without a jury; and at the trial the reasons of appeal based on the amendments above mentioned were not pressed, but the reasons of appeal based on the amounts allowed to the administrators for their own services were pressed.

In support of these latter reasons, testimony by one of the administrators, Mr. Cawley, an experienced member of the bar of this state, was introduced to show what his services and those of his co-administrator had respectively been in the administration of the estate and what in his opinion their respective services had fairly and reasonably been worth to the estate, of which the assets amounted to $43,551.11. He also described extensive legal services performed by the attorney of his co-administrator for the benefit of the estate. Another experienced member of the bar of this state also testified, as an expert, to what, in his opinion, were fair and reasonable amounts to be allowed for the services of the administrators, in view of the size of the estate and the nature and extent of the services, as testified to by Mr. Cawley. There was no opposing evidence.

At the conclusion of the trial, the trial justice rendered a decision, in which he stated that there was no necessity for the employment of an attorney by Mr. McAlear, in view of the fact that his co-administrator was an experienced lawyer, who was "amply able to take care of everything that pertained to the estate." Further on in his decision, he also said that he thought that the probate court was in error when it allowed the item for payment of compensation for Mr. McAlear's attorney; that he did not think that the law permitted any such allowance by the court, but that it was a matter for Mr. McAlear to pay his attorney what the latter's services were reasonably worth.

For these reasons, the trial justice struck out the above item from the account; and after considering the amount of the estate and the evidence submitted to him as to their services, he decided that Mr. McAlear should be allowed a fee of $1500 for his services and that Mr. Cawley should be allowed a fee of $2000 for his services, the difference between these fees being due to the latter's services as an attorney in connection with an action which was brought against the estate on a claim for $7500 and which was settled, without trial, for $2500.

The instant case is now before us on only one exception, which was taken by the administrators to this decision, involving three items of the account, and which was based on the grounds that the decision was against the evidence; that it was contrary to law; and that it was against the law and the evidence. Attorneys for the administrators have contended before us that Mr. McAlear should have $2000 and Mr. Cawley $3000; and attorneys for the next of kin of the intestate have presented arguments in support of the decision of the trial justice.

We shall consider first that part of the decision by which the trial justice struck out of the account, as allowed by the probate court, the item of a credit of $1200 to Mr. McAlear for the services of his attorney. If the trial justice meant to rule that, in case there are two administrators of an estate and one of them is an experienced and competent lawyer, able to attend to all the legal matters connected with the administration of the estate, his co-administrator is never justified in employing another lawyer to give him legal advice and assistance in the performance of his duties, we cannot agree with the trial justice.

On the evidence before the superior court in the instant case Mr. McAlear was, in our judgment, justified in employing the attorney for whose fees an allowance was made to the former in the account as approved by the probate court and to have this attorney perform for the benefit of the estate the services which he did perform, evidently with the knowledge and consent of the other administrator.

So also, if the trial justice meant to rule that the law does not permit a probate court to allow, in an administrator's account, a credit for an expense properly incurred by him for the services of a lawyer which were of benefit to the estate, we cannot agree with such ruling. That is the proper way of reimbursing an executor or administrator, to the extent of the benefit to the estate, for expenses properly incurred by him for expert assistance in the performance of his duties. G.L.1923, chap. 370, sec. 7, is as follows: "Executors and administrators shall be allowed in their accounts all reasonable and proper charges and disbursements made by them for the funeral of the deceased and in the execution of their trust." (Italics ours.) See Evans v. Trustees of University of Pennsylvania, R.I., 197 A. 438, and authorities cited.

But to us the decisive point on this feature of the case is that in our opinion the superior court, on this appeal, had no jurisdiction to do anything as to this item of a credit to Mr. McAlear for the fees of his attorney. As the allowance of that item would reduce the amount for distribution to the next of kin, they could have taken an appeal from that part of the decree; but, as above stated, no such appeal was taken. Further, the allowance of that item by the probate court was not specified in the reasons of appeal, as originally filed by the appellants. No reason of appeal, based thereon, was added by amendment under G.L.1923, chap. 362, section 1, requiring that a...