Whitehurst v. Singletary

• Decision Date: 22 October 1948
• Docket Number: 32133.
• Citation: 50 S.E.2d 80,77 Ga.App. 811
• Parties: WHITEHURST v. SINGLETARY.
• Court: Georgia Court of Appeals

50 S.E.2d 80

77 Ga.App. 811

WHITEHURST v. SINGLETARY.

No. 32133.

Court of Appeals of Georgia, Division No. 1.

October 22, 1948

Syllabus by the Court.

1. This proceeding was ex parte from the beginning and still is but ex parte proceedings, if otherwise proper, may be decided by this court.

2. Fees for the services of an attorney at law are legitimate expenses in the representation of an estate according to the particular facts and circumstances of each case.

3. Where minor children are involved, upon the death of the father the mother is primarily liable for their support maintenance, and education, and she would be entitled to reimbursement for expenditures made by her for their support and maintenance, or to pay directly therefor out of the separate estates of such children, only where it appeared that the mother was in such financial circumstances that she was unable to provide such support and maintenance and that the children's separate estates were sufficient for such purpose.

4. In the present case it clearly appears from the record and the agreed statement of fact that the ordinary, in denying compensation to the guardian for his services as an attorney at law, was not exercising the discretion vested in him by law, but predicated his decision upon an erroneous concept of the law, to wit: that it was not the legal duty of a mother to support her minor children, the father being dead and they having separate estates inherited from their father, although she may have been amply able to do so, and that, except for this erroneous concept of the law, in which he exercised no discretion at all, he would have rendered a judgment allowing the fee to the guardian for his services as an attorney at law in this matter.

5. The assignment of error to this court, however, is on the judgment of the superior court, and, on appeal to the superior court, the action was de novo. The judge of the superior court was vested with the same discretion as the court of ordinary and nothing appears in the record to indicate that he failed to exercise this discretion or that he based his decision upon an erroneous conception of the law. A finding in favor of the application of the guardian under the law and facts, was not demanded, and it cannot be held by this court that the judge of the superior court erred in denying the relief sought by the guardian on the appeal to the superior court.

A. J. Whitehurst, as guardian of Tommy Frank, Norwood, Scarlett, Sarah Joe, and Terry Redfern, filed a petition in the Court of Ordinary of Thomas County seeking extraordinary compensation for services rendered as an attorney in making an investigation and in bringing an action before the Ordinary of Thomas County seeking to have an order granting an encroachment upon the wards' estates for their support set aside, modified, or vacated. After a decision in the court of ordinary adverse to the guardian, the case was appealed to the superior court.

On the trial before the judge of the superior court a stipulation of the following facts, among others, was made by A. J. Whitehurst and A. M. Singletary, Ordinary of Thomas County. Earl Redfern died and was survived by his widow, Mrs. Elois Redfern, and five minor children, Tommy Frank, Norwood, Scarlett, Sarah Joe, and Terry Redfern. The widow became administratrix of the estate. Mrs. Redfern was unable to make bond as guardian of the minor children, and A. J. Whitehurst, County Administrator and exofficio County Guardian, was selected and qualified as guardian of the estates of the minor children. On February 11, 1946, Mrs. Redfern turned over to A. J. Whitehurst, as such guardian, $5,919.22 in cash, and United States War Bonds of $3,000 purchase value, the property of various of said minor children. This left a balance due by her, as administrator, to the guardian, of $3,479.05. She was granted leave by the court to sell the farm in Brooks County, which had been set aside as part of the year's support, in order to secure this balance due by her as administratrix, and advised the guardian that she was without means to support the minor children. Based on this information the guardian petitioned the court of ordinary for an order to encroach upon the corpus of the estates of the minor children for the purpose of their maintenance, support, and education, and an order was granted giving the mother $100 per month from the estates of the wards for this purpose. While such payments were being made Mrs. Redfern advised the guardian that this amount was insufficient for the purpose provided, and at the same time the guardian was advised through the grandfather of the minor children and others, that the mother had a separate estate of her own and was well able to support and maintain the children without encroaching upon the corpus of their estates. The guardian investigated these reports as to the financial ability of the mother, and found a security deed recorded in Brooks County from C. F. Collins to her, securing a debt of $8,400, payable at the rate of $150 per month, and another security deed recorded in Cook County from G. W. Stripling to her, securing a debt of $5,000, payable $500 per year through 1954, and also found that she was doing a banking business with the Bryan Bank in Adel, Georgia. Based on this information, the guardian, on November 5, 1946, petitioned the Court of Ordinary of Thomas County for an order requiring Mrs. Redfern to show cause why the previous order authorizing encroachment upon the corpus of the estates of the five minor children should not be modified, set aside, or vacated. At a hearing it was shown to the satisfaction of the court that although Mrs. Redfern had in the past had considerable money, at that time she was not financially able to support and maintain the minor children, and the ordinary modified and changed his previous order so as to permit an encroachment upon the corpus of the estates of the five minor children to the extent of $200 per month. The guardian then petitioned the ordinary for $125 as extraordinary compensation for his services as an attorney at law in making the investigation and in seeking to have the order of the court of ordinary granting the encroachment of $100 per month modified, set aside, or vacated. The ordinary denied this compensation.

From the record presented to this court, it appears that in denying compensation to the guardian, the ordinary passed the following order: '* * * it appearing that there could be no obligation on the part of the mother of said wards to support them out of her personal estate when said wards had an estate of their own derived from inheritance from their father, and that the service rendered by said guardian in said matter could have in no way benefited his said wards, it is therefore considered, ordered and adjudged that no extra compensation be allowed to A. J. Whitehurst, as Guardian of Tommy Frank, Terry, Norwood, Scarlett and Sarah Joe Redfern for his services in the action mentioned in the petition.'

Included in the stipulation of facts between the guardian and the ordinary when the case was heard by the judge of the superior court is the following statement: 'It is agreed that the sum sought, to-wit: $125.00 as extraordinary compensation is not an excessive amount of fee for the services performed and expense incurred, and the only reason for the disallowance of the same by the ordinary, from which this appeal arose, was due to a difference of opinion between the ordinary and the guardian as to whether or not, even had the mother been extremely wealthy, the action could have been of any benefit to the estate of the wards, the ordinary taking the position even had she the means the guardian could not have prevailed and caused a termination of payments to her from the corpus of the estate of the wards for their maintenance, support and education, while the guardian took the position and based his opinion upon the opinion * * * in the case of Pettigrew v. Williams, 65 Ga.App. 576, 16 S.E.2d 120, and particularly the language * * * beginning with the last paragraph thereof on page 587 through and including the first paragraph of page 589 thereof, that it was his duty to cause a termination, were it proved that the mother had ample estate, of the encroachment upon the corpus of the wards estates.'

The appeal in the superior court was heard before the judge without the intervention of a jury and he passed an order denying the relief sought by the appeal; and the case is here on exceptions to that judgment.

A. J. Whitehurst, of Thomasville, for plaintiff in error.

No appearance for defendant in error.

SUTTON, Chief Judge (after stating the foregoing facts.)

1. This action was ex parte in the court of ordinary. On appeal to the superior court, the ordinary was named as appellee, although this was neither proper nor necessary, for, as ordinary, he could not be affected in any way by the outcome of the litigation. On exception to this court the ordinary was named as the defendant in error and served with the bill of...