Reynolds v. Dorsey

• Decision Date: 09 July 1941
• Docket Number: 13802.
• Citation: 15 S.E.2d 779,192 Ga. 538
• Parties: REYNOLDS et al. v. DORSEY et al.
• Court: Georgia Supreme Court

15 S.E.2d 779

192 Ga. 538

REYNOLDS et al. v. DORSEY et al.

No. 13802.

Supreme Court of Georgia

July 9, 1941

Syllabus by the Court.

1. Where on the petition of legatees against an executor a court of equity takes jurisdiction and by final decree makes final distribution of an estate, that court has jurisdiction to hear and determine the merits of an application by the executor for extra compensation and attorney's fees.

2. Where an executor finds in the papers of his testator a bank book showing a deposit in a bank in the name of another estate of which he was executor, such deposit is prima facie the property of the first estate. In such a case it is error to allow the executor extra compensation from the first estate merely because he wrote letters, inquired at other banks, and examined deed records to ascertain the legatees of the first estate and to discover if there were other assets. It is also error to award attorney's fees to such executor for an attorney who prepared and filed a petition for direction, but abandoned it and then defended against a suit by the legatees of the first estate. Accordingly the judgment is affirmed, with direction that these amounts be written off, and that the judgment be limited to the amount of the regular commission allowed to executors for paying out funds of an estate.

Frank Garraux died in June, 1937, leaving a will in which he named Hugh M. Dorsey, Jr., as executor. While searching through the possessions of his testator the executor discovered an old savings-deposit book evidencing a savings account of approximately $2,700 in the Citizens & Southern National Bank, Atlanta, Georgia. The account was in the name of 'Estate of A. C. Gann, Frank Garraux, Admr.,' and the last entry in the book had been made in 1924. Upon inquiry the executor found that the bank actually had such a deposit and that it had grown with the accumulation of interest to the sum of approximately $4,000. The executor had never heard of A. C. Gann, and did not know that his testator had ever represented his estate, but from a search of the records of the court of ordinary he found that Garraux had qualified as the executor of the will of A. C. Gann in 1917. Gann's will had relieved his executor of making any returns and reports to any court, and there were no other records of the estate of file in the court of ordinary. No records of the estate could be found among the papers left by Garraux. The executor inquired at the other local banks in an effort to locate any other funds which Garraux might have had on deposit as executor or administrator of the estate of Gann but did not find any. He also made a diligent search of the deed records of the county, to locate any real estate that might be standing in the name of Gann or Garraux as his executor; and he found two unimproved tracts of land of small value, to which title appeared to be wholly or partly in A. C. Gann. From Garraux's former attorney executor Dorsey was able to locate some of the residuary legatees under the will of Gann and from these legatees he was able to locate the others. He advised the legatees of his findings, but told them that he could not distribute the property among them without an order of the superior court, because he was unable to determine with certainty the ownership of the property. He asked them to institute an action against him to determine this ownership; but when after seven or eight months they had not instituted suit he had an attorney, Thomas M. Stubbs, to prepare and file a petition in Fulton superior court against both the legatees under the will of Frank Garraux, and the legatees and heirs of legatees under the will of A. C. Gann, for the purpose of securing an adjudication of the title to the property. About the same time the legatees and heirs of legatees under the will of Gann filed suit against executor Dorsey for the fund on deposit and the real estate, and he abandoned his suit. As the legal representative of the estate of Garraux, deceased, he defended the suit for the benefit of that estate, and procured a judgment in the trial court dismissing the action on demurrer. On review this court reversed the judgment on the ground that the petition, in so far as it related to the fund deposited in the bank, alleged a cause of action. Reynolds v. Dorsey, 188 Ga. 218, 3 S.E.2d 564. Upon a trial the jury returned a verdict for the plaintiffs for the bank deposit.

After the rendition of the verdict for the plaintiffs the executor filed in the superior court an application for an award of fees to himself and his attorney from the bank deposit. This petition, after stating substantially all of the facts contained the following paragraph: 'Petitioner states that by reason of the great lapse of time, complete destruction of all records, and the widely-scattered residences of the various legatees under the will of the said A. C. Gann, petitioner's investigation relative to the condition of the estate of the said A. C. Gann, and the ownership of said property required a considerable amount of effort, time, and diligence on the part of petitioner, and later the preparation and filing of the petition in his own name as above referred to; and petitioner states that reasonable compensation should be awarded for such extraordinary services in investigating said estate and producing such funds in court, and that reasonable attorney's fees should be awarded for the preparation and filing of said petition.' He prayed for the payment of the statutory executor's commission, and in addition reasonable extraordinary compensation for the unusual work described in the petition, for...