Pate v. Maples

• Decision Date: 05 June 1897
• Citation: 43 S.W. 740
• Parties: PATE et al. v. MAPLES et al.
• Court: Tennessee Supreme Court

43 S.W. 740

PATE et al. v. MAPLES et al.

Court of Chancery Appeals of Tennessee.

June 5, 1897.

Appeal from chancery court, Knox county; H. B. Lindsay, Chancellor.

Bill by Frank Pate and others against S. R. Maples, executor of Pleas Pate, deceased, and others. There was a decree, from which D. R. Nelson and others appeal. Modified.

D. R. Nelson, S. P. Fowler, J. A. Fowler, and Jourolmon, Welcker & Hudson, for appellants. Washburn, Pickle & Turner, for appellees.

WILSON, J.

This is a contest over what are reasonable fees to be allowed certain attorneys who appeared under regular employment, and rendered professional services in the cases, and whether some of them are entitled to be paid this fee out of the funds of the estate being wound up and settled in the suit. Upon a reference, the master reported what compensation should be allowed the executor, and the fees to which the attorneys were entitled, and upon other matters referred to him. Exceptions were filed to this report by complainants, directed to the fee reported in favor of D. R. Nelson, as solicitor for the executor, and of Henderson, Jourolmon, Welcker & Hudson and D. R. Nelson, as counsel for the executor and receiver, as being excessive and unreasonable. Cordelia Belle Pate, by her guardian ad litem, also excepted to the fees reported in favor of these attorneys, and also to a fee reported in favor of Attorneys Mynatt & Fowler, provided it was meant to be reported as a charge against the estate, as being excessive and unreasonable, but that, if it was to be a charge against the interest of the parties who employed them, she had no complaint to present. Certain of the defendants excepted to the fee reported in favor of Washburn, Pickle & Turner as excessive and unreasonable. They also excepted to the fees reported to Messrs. Nelson and Henderson, Jourolmon, Welcker & Hudson, and to the compensation reported in favor of a guardian ad litem representing one minor interested in the estate. The executor and receiver excepted to the report because the compensation reported for him was insufficient. The cause came on for hearing, February 17, 1897, before the chancellor, upon the report of the master, and the exceptions thereto, in connection with the entire record. It appears that the guardian ad litem of one of the exceptants excepted to the report on the ground that he had been given no notice of the taking the account, and, before the court acted on the report and the exceptions thereto, certain of the solicitors, to wit, Messrs. Nelson and Henderson, Jourolmon, Welcker & Hudson, representing defendant Maples, and Mynatt & Fowler, representing the other defendants in the case, agreed in open court to release to the ward of said guardian ad litem one-eighth of relators' fees, if any, that were allowed them for services in the cause, to be taxed to the general fund of the estate. In consideration of this agreement, the court overruled the exceptions of the guardian ad litem to the report. Acting upon the other exceptions of the parties, he reduced the fee reported by the master to Washburn, Pickle & Turner to $500 for services rendered complainants in this cause and in the administration of the estate of Pleas Pate, deceased, and decreed that Henderson, Jourolmon, Welcker & Hudson and D. R. Nelson be allowed a fee for services rendered the executor and receiver in the cause of $200, and that D. R. Nelson be allowed a fee of $300 for services rendered the executor, outside of this cause, and that the fees aforesaid be paid out of the general funds or assets of the estate administered in this cause. The master had reported that a fee of $300 should be allowed D. R. Nelson under his general retainer, and for consultation and advice to the executor and receiver, and a fee under his retainer and for services in the contested will case, and a fee of $25 in the Cummings Case, and that Henderson, Jourolmon, Welcker & Hudson and D. R. Nelson were entitled to a fee for all their joint services in the case of $350. He sustained a fee of $50 reported for the guardian ad litem. He held that Mynatt & Fowler, attorneys for some of the defendants, were not entitled to have their fees taxed against the general funds of the estate, and that he had no power or jurisdiction to adjudge the amount of their fees, or how they should be paid, as between them and their clients. The master had reported that $87.60 should be allowed defendant Maples as executor, and $71.25 as receiver. The chancellor increased his allowance to $250. As thus modified, the report of the master was confirmed. From this decree, reducing the fees of Messrs. Nelson and Henderson, Jourolmon, Welcker & Hudson, D. R. Nelson appealed to the supreme court, and has assigned error. Mynatt & Fowler appealed from so much of the decree as held that the court was without jurisdiction to adjudge their fee, and that it could not be charged against the general funds of the estate. The case is before us on the complaint of these solicitors.

The error assigned by appellant Nelson is that the chancellor erred in reducing his fees, and that of Henderson, Jourolmon, Welcker & Hudson and himself, as found and reported by the master. The error assigned by Messrs. Mynatt & Fowler is that the court erred in refusing to adjudge their fee at the figures reported by the master, and to decree that it was a charge against the general funds of the estate of Pleas Pate, deceased, being wound up and distributed in this case.

In order to understand the question to be determined, it is necessary to give a brief outline of the facts and the nature and cause of this suit. It appears that Pleas Pate, a colored man, died in Knoxville in June, 1894. He possessed a considerable estate, much the greater part of it being houses and lots in the city. He left a last will of great length, and rather peculiar in some of its provisions. He had numerous relatives and heirs at law but gave his property in his will to only a portion of them. The defendant Maples and one Jones were nominated as executors of his will. Jones, it seems, declined the trust, but Maples, the will having been probated in common form, qualified as executor in July, 1894, and took charge of the estate. Most of his property, under the provisions of the will, was to be sold, and the executor retained appellant Nelson as his counsel. At this stage some of the excluded heirs instituted a contest to set aside the will, under an issue of devisavit vel non, in the circuit court, and the issue was made up in that court. Appellant Nelson, under his retainer by the executor, attended to these matters and prepared to sustain the will. In addition, during the time and since the qualification of the executor, he had given him such advice, in respect to his duties and their discharge under the terms of the will, as was deemed proper; and owing to the nature of the will, and the situation and character of the property, the executor, it appears, deemed it appropriate to frequently consult his counsel. After this issue was made up in the circuit court to try the will suit, to wit, October 27, 1894, an agreement was entered into and reduced to writing and signed between eight of the heirs of Pleas Pate. It need only be stated that this agreement, after reciting the death of Pleas Pate, testator, that he had named in his will certain of his relatives as his heirs therein to his property, that one of his named heirs thereunder had since died, and that the suit had been instituted to contest the will, provided for a compromise of all matters growing out of the estate of the deceased, Pleas Pate, and the subsequent death of one of his legatees and devisees, and for the disposition of all of his property not specifically given in the will. This agreement divided the estate into 18 shares, and named the parties entitled to them, and the parties signing it agreed that the estate should be divided as therein stipulated, provided that the suit to contest the validity of the will of Pleas Pate be dismissed, and that the parties bringing the same pay the costs and expense incident thereto, and provided, further, that all the parties declared to be legal heirs by the will of said Pate sign it, and that all the heirs of Guthie Atchley, one of his named heirs, who had died, consented to abide by it. It was further stipulated in this agreement that all expenses of the administration of the estate of the deceased, Pate, including counsel fees incurred in protecting it, and in having the will of the deceased construed and the estate distributed, were to be paid out of the general estate, and the remainder to be divided as provided in the agreement. After this agreement, to wit, November 22, 1894, a number of the parties designated as heirs or share takers in it entered into an agreement in which they accept the former one, and further say and stipulate that in consideration of the fact that the parties to the first agreement had retained Washburn, Pickle & Turner and Eugene Holtsinger as attorneys to represent them in the administration of said estate, and in carrying out and executing said first agreement, the fees of said attorneys for their services in connection with the subject should be charged to and paid out of the estate, as part of the expenses of its administration, and that if they employ any other attorneys in...