Taylor v. Taylor
| Decision Date | 24 April 1928 |
| Citation | 223 Ky. 799 |
| Parties | Taylor, et al. v. Taylor, et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Executors and Administrators. — Where executors paid taxes out of sum received, with which they charged themselves, they were entitled to credit for taxes paid.
2. Executors and Administrators. — Where executors paid commission to land company for selling part of lands belonging to estate, executors were entitled to credit for commission paid, though son of one of executors was interested in land company.
3. Executors and Administrators. — Executors held not entitled to credit for sums paid to nurses and physicians for services to testator during his last illness at hospital, where they had individually contracted with testator to support and care for him during his life.
4. Executors and Administrators. — Executors held entitled to commission on amount which was received by them as devisees, since personal representative is entitled to commission allowed for distribution of estate, and it does not make any difference to whom money is paid when it is distributed.
5. Executors and Administrators. — Although, where one of executors performs no service, compensation goes to one performing service, where services are performed jointly, or where one performs major portion of services, and the other is ready and willing to do his part, statutory compensation must be divided equally.
6. Executors and Administrators. — Where one executor made trips into another state regarding property, where it was unnecessary for both to go, and the other executor performed at least a part of services, and was willing to perform fully his proportion of services, statutory compensation must be divided equally, but one performing extraordinary service was entitled to extra allowance therefor.
7. Executors and Administrators. — Where suit to settle an estate is instituted by one of interested parties, and prosecuted to judgment, attorney representing party is entitled to compensation for his services out of estate, under Ky. Stats., sec. 489.
8. Executors and Administrators. — Under Ky. Stats., secs. 489, 889, attorney, representing devisee instituting suit for settlement of estate, and prosecuting same to judgment, held entitled to compensation for services out of estate, where no other party joined in prosecution of suit to have estate settled, but some of devisees filed answers, and sought to reach executors by cross-petition, but none offered to join in prosecution of suit for settlement of estate.
9. Attorney and Client. — Amount of fee to which attorney representing party instituting suit to settle estate was entitled out of estate was matter which addressed itself to sound discretion of chancellor.
10. Attorney and Client. — Attorney, representing devisee instituting suit to settle estate amounting to over $700,000, held properly allowed $12,500 out of estate for services, $500 of which is payable to attorney who instituted suit in Texas for devisee to settle the estate.
11. Executors and Administrators. — Refusal to allow claim of one of executor's sons for compensation for services as an attorney for executors will not be disturbed.
12. Attorney and Client. — Allowance of $18,000 to attorney for executors representing estate amounting to $725,319.09 when converted into cash, where there was considerable litigation over period of years, held not excessive.
13. Executors and Administrators. — Allowance of $102 instead of $988.22 claimed to estate of devisee, who had instituted suit for settlement of estate, as expenses in connection with litigation, will not be disturbed, where there was no itemized statement of expenses.
Appeal from Marion Circuit Court.
C.E. RANKIN for appellants.
W.H. SPRAGENS, W.C. McCHORD, TILLMAN & McCALL, SAMUEL HOLDING, HY JACKSON, CHENAULT HUGULEY, CHAS. M. McCHORD and H.S. McELROY for appellees.
Reversing in part and affirming in part.
John Taylor died in Marion county on November 7, 1917, at the ripe old age of 91 years. He devised his whole estate to his fourteen nieces and nephews, and appointed J. Clarke Taylor and John Taylor, Jr., two of the nephews, the executors of his will. He empowered the executors to sell and convey all of the estate, giving them a discretion at to the time and manner of sale. After his estate should be converted into cash, he directed that it be distributed among the nieces and nephews. He left a large estate. The appraisement showed personal property valued at $56,023.36; 595 acres of Marion county land valued at $65,000; 26,110 acres of land in five counties in Texas valued at $271,390; and certain real estate in Knoxville, Tenn., which was not appraised. The personal property, when converted into cash amounted to more than its appraised value. The 595 acres of Marion county land was sold for $87,200. It developed that the acreage in the Texas land was 27,512 acres, and this land was sold by the executors for $601,000. The Knoxville real estate, which was not appraised, was sold for $7,477. The total amount of the estate after it was converted into cash was $725,319.09. There were no debts except the expenses incident to the settlement of the estate.
Partial settlements were made by the executors from time to time; the first having been made in October, 1918. Prior to April 29, 1921, the personal property and the Marion county land had been converted into cash, as well as a part of the Texas land. The total cash which had been received by the executors up to that date was $285,103, and of this sum $98,000 had been distributed to the devisees. About this date James H. Taylor, one of the devisees, feeling himself aggrieved at the delay in the settlement of the estate, employed W.C. McChord of Springfield, Ky., as his attorney to make an investigation, and, as a result of that investigation, suit was instituted by James H. Taylor for the settlement of the estate.
It appears from the record that J.C. Taylor, one of the executors, had acted as an agent for the testator, John Taylor, for some years prior to his death, and that he and Len Taylor had made a contract with the testator, John Taylor, to care for and support him during the remainder of his life in consideration of, and for the use of, his farm. Because of the agency, the litigation after it started in 1921 divided into two branches, one branch relating to the doings of J.C. Taylor as agent, and the other relating to the settlement of the estate of John Taylor. This case has been before this court twice on the agency branch of the suit. One of the opinions is reported in 211 Ky. 309, 277 S.W. 278, and the other in 218 Ky. 187, 291 S.W. 27. When the suit was instituted to settle the estate, it was sought by the plaintiff to charge the executors with rents due from J.C. Taylor and Len Taylor for the use of the farm and with money due from J.C. Taylor as agent. The amount of commission paid to the executors was attacked, and there was complaint of the failure to file inventory.
It was further charged in the petition that the executors had not been required to pay interest on the funds of the estate in their hands remaining undistributed, and that they had not been diligent in the discharge of their duties in connection with the sale of the Texas land. An amended petition was filed a few months later, enlarging the allegations of the original petition in connection with the alleged failure of the executors to sell the Texas land. Probably other amended petitions were filed in the suit enlarging and amplifying the allegations of the original petition. The executors filed an answer in September, 1921, which was largely a traverse of the allegations in the petition and amended petition. This answer disclosed that the Marion county land had been sold, and that 2,539 acres of the Texas land had been sold. The answer proceeded with allegations to show that the executors had been diligent in their efforts to carry out the provisions of the will. J.C. Taylor and Len Taylor individually filed an answer to that part of the petition in which it was sought to have the executors charged with rents which they should have paid for the use of the farm.
In October, 1921, five of the devisees filed an answer alleging that the executors should have sold the Texas land in 1919 and 1920. It was alleged in that answer that the executors had not agreed between themselves, and that John Taylor had been inactive, and rendered no aid to J. Clark Taylor, and had announced that he would not do so. It was alleged that the executors should be required to act together and sell the land promptly in the exercise of good judgment, or that they should be removed. The answer denied that it was expedient or necessary to place the lands in the hands of the master commissioner. It also objected to any allowance as compensation to the attorney for plaintiff for his services which should be paid out of the estate, and denied that it was necessary to refer the case to the master commissioner to settle the accounts of the executors. At the same time, two of the devisees representing one share in the estate filed an answer identical in terms with that filed by the five devisees. Another devisee filed an answer in which it was alleged that the executors were doing their duty, and asking that they be allowed to administer the estate without interference.
Up to this time it appears from the record that James H. Taylor was the only devisee in court asking for a settlement of the estate. Some of the others had filed answers, but none of them had offered to join with the plaintiff in his suit. On October 21, 1921, the court referred the case to the master commissioner to audit the accounts of the agency branch of the case, but refused to refer it to the commissioner to audit the accounts of the executors.
About this time James H. Taylor filed a suit...
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