Overman v. Lanier

• Decision Date: 23 December 1911
• Parties: OVERMAN v. LANIER et al.
• Court: North Carolina Supreme Court

73 S.E. 192

157 N.C. 544

OVERMAN v. LANIER et al.

Supreme Court of North Carolina

December 23, 1911

Appeal from Superior Court, Rowan County; Lyon, Judge.

Final accounting by L. S. Overman as administrator of J. B. Lanier in which Mattie Lanier and others filed objections. From the judgment, both parties appeal. Affirmed on the administrator's appeal, and reversed and remanded upon that of the objectors.

Where the heirs and distributees contested the commissions and credits claimed by the administrator, the administrator was not entitled to counsel fees in that litigation.

See also, 72 S.E. 575.

T. F Kluttz, E. C. Gregory, T. J. Jerome, E. J. Justice, L. H. Clement, and C. W. Tillett, for plaintiff.

Walser & WaLser, G. W. Garland, Burwell & Cansler, and Manly, Hendren & Womable, for defendants.

CLARK C.J.

J. B. Lanier of Salisbury died intestate in 1894, and the plaintiff was appointed administrator. In September, 1904, the plaintiff filed his petition for a final account and settlement, and the heirs at law and distributees filed an answer to the petition. The matter was referred to a referee, to whose report both parties filed exceptions. The judge overruled all exceptions, to which action both sides filed exceptions, and appealed.

Plaintiff's Appeal.

The plaintiff abandons all exceptions in his appeal except:

(1) The disallowance of $250 attorney's fees to Watson & Buxton. The referee found as a matter of fact that it was unnecessary for the plaintiff to consult them in behalf of the estate, and this finding of fact has been approved by the judge. The ruling of law thereon that this fee should not be allowed to the administrator must be approved.

2. The referee reports that the clerk's allowance of commissions to the administrator of 5 per cent. amounted approximately to $10,000; that the expenditures for clerical services, attorney's fees, and expenses amount to over $8,000, making a total of about $18,000, or over 16 per cent. of the total receipts, the total collections being about $110,000; that the largest part of the estate was settled in two years, but the entire administration lasted about nine years. The referee going over the record of the administration in full found that 4 per cent. upon the receipts and 2 1/2 per cent. upon the disbursements would be a fair compensation to the administrator for his services. Five per cent. is the limit allowed by law, but within that limit the compensation should be proportioned according to the services rendered and in consideration of all the facts and circumstances. The ex parte allowance of commissions by the clerk is not conclusive. Walton v. Avery, 22 N.C. 405. In Green v. Barbee, 84 N.C. 72, the court said: "The compensation allowed the personal representative for his services within the limit of 5 per cent. on both sides rests in the sound discretion of the tribunal called to pass upon the question." The judge below in reviewing the entire dealings and acts touching the administration of the estate concurred in the allowance made by the referee, and we see no reason to disturb it.

(3) The other exception is that the referee held that the administrator should not be allowed more than $1,000 for his attorney's fees in representing him in this present matter. The defendants except to the allowance of any attorney's fees at all to the administrator for defending himself in this action, and the whole matter will be considered on the defendants' appeal.

In the plaintiff's appeal the judgment should be affirmed.

Defendants' Appeal.

Passing by the exceptions to the findings of fact, as to all which there was evidence and the rulings upon which by the judge are conclusive upon us, the first exception to be considered is to the allowance of $30,000 paid upon the Rountree notes which the defendants contended were given for losses on "futures" in the New York market, and which was therefore a gambling debt and invalid under Rev. 1905, § 1691. The referee found as a fact that "the record does not disclose sufficient evidence either to show affirmatively that this was a gambling contract or that it was a legitimate contract made with the intention that the cotton should be delivered, and the referee finds that the administrator had no such knowledge of the nature of the transaction which resulted in the Rountree debts, nor could have procured the same upon reasonable inquiry, as would have enabled him successfully to resist suits brought thereon on the ground that they were incurred under gambling contracts."

We cannot agree with the defendants that, because in their answer in this proceeding they alleged that these were gambling debts, this cast the burden of proof upon the plaintiff under Revisal, § 1691. That provision applies where a party sues upon the contract, and the debtor denies it, and sets up the defense. But here the defendants are alleging that the payment by the plaintiff of his intestate's notes, valid on their face, is invalid because the contract was founded upon illegal consideration, and the burden was upon them to prove it. The matter has been very fully and ably argued by counsel on both sides. But, in view of the findings of fact by the referee that it is not shown that this debt was for a gambling contract and the approval of that finding by the court, we cannot sustain the exception.

Nor can we sustain the exception that the referee paid out insurance premiums to keep up a policy which was held as collateral to a note due by Payne, who was a man in advanced years, and in somewhat feeble health. It is true that this turned out a loss to the estate. But it is found that the...