Whiteside's Estate, In re

• Decision Date: 12 August 1969
• Citation: 258 A.2d 279
• Parties: In the Matter of the ESTATE of George Morris WHITESIDE, II, Deceased. WILMINGTON TRUST COMPANY, a corporation of the State of Delaware, and George Morris Whiteside, III, Co-Executors of the Estate of George Morris, Whiteside, II, Exceptants-Below, Appellants, v. The REGISTER OF WILLS IN AND FOR NEW CASTLE COUNTY, Appellee.
• Court: Supreme Court of Delaware

Page 279

258 A.2d 279

In the Matter of the ESTATE of George Morris WHITESIDE, II,

Deceased.

WILMINGTON TRUST COMPANY, a corporation of the State of

Delaware, and George Morris Whiteside, III,

Co-Executors of the Estate of George

Morris, Whiteside, II, Exceptants-Below, Appellants, v. The REGISTER OF WILLS IN AND FOR NEW CASTLE COUNTY, Appellee.

Supreme Court of Delaware.

Aug. 12, 1969.

Upon appeal from the Orphans' Court. Reversed.

Henry M. Canby and Franklin S. Eyster, II, of Richards, Layton & Finger, Wilmington, for exceptants-below, appellants.

Clarence W. Taylor, County Atty., Wilmington, for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice.

In this appeal from the Orphans' Court, the executors of the estate of George Morris Whiteside, II, seek reversal of an order which affirmed a ruling by the Register of Wills refusing to allow the amount of an attorney's fee as an expense of administration. See 248 A.2d 621. The fee was paid to a lawyer who specializes in tax law, and was in addition to the amount paid those attorneys who advised the executors concerning all other problems of the estate. Two issues have been raised here: (1) Does the Register of Wills have the discretionary power to strike from a final account an attorney's fee actually incurred and paid by the executors? and (2) If the power exists, was it abused in this instance? Because of our holding that the power does not exist, we do not reach the second question.

It appears that there were certain difficult and complicated questions concerning the taxes to be paid from this estate; that the solution to those problems required the advice and assistance of an attorney who was a specialist in that field; and that the attorney so employed was not connected with the firm which was representing the executors in other matters, but was called in upon the advice of that firm. It also appears that, because of his research and suggestions, the executors were able to make a settlement with the tax authorities which was of substantial benefit to the estate. Although the Register agreed that the expenditure was a wise one, he disallowed the fee, stating that it ought to be paid out of the commissions allowed to the executors. He did not question the amount of the fee, which is conceded to be reasonable. Exceptions to this disallowance were filed by the executors in the Orphans' Court, which affirmed the Register's action. No beneficiary of the estate appeared either in the Court below or in this Court and, at the request of the Court below, the County Attorney appeared in support of the ruling.

We are informed that, at sometime prior to the filing of the account herein involved, the Register had promulgated a fee list for New Castle County showing the total amounts which would usually be allowed as commissions and attorneys' fees, reserving to himself the right to allow, upon petition, a greater or lesser amount in individual cases. This fee list is based upon the size of the gross estate, and the allowances therein are flat percentages as commission and counsel fee combined. In the present case, the Register stated that, in an estate of this magnitude, services such as those rendered by the tax attorney are not extraordinary, and he accordingly refused to make an allowance exceeding that allowed under the promulgated list.

Two sections of the Delaware Constitution, Del.C.Ann. specifically deal with the Register of Wills. Article 4, § 31 states that he shall 'hold the Register's Court', but it does not define the jurisdiction of that Court, leaving it to the Legislature to define its powers and duties. Wilmington Trust Co. v. Baldwin, 8 W.W.Har. 595, 195 A. 287. Article 4, § 32 requires accounts of personal representatives to be filed with the Register, who shall examine, adjust and settle them. These provisions have long been interpreted as meaning that the Register constitutes a Court for certain purposes, and an accounting officer for other purposes. Robinson v. Robinson's Admr., 3 Har. 433; In Re Estate of Morrow, Orphans' Ct., 219 A.2d 137; 1 Wooley on Delaware Practice 50.

When performing his judicial functions, the Register constitutes a Court of limited jurisdiction and has no judicial authority except that which is conferred upon him by the Constitution or statutes. Cf. In Re Burton's Estate, 30 Del.Ch. 615, 59 A.2d 278; Wall v. Wall, 123 Pa. 545, 16 A. 598. No provision is found in either Delaware's Constitution or its statutes expressly conferring upon him the right to exercise judicial functions in settling accounts; as to them, he is purely an accounting officer. Bodziak v. Theisen, 4 Terry 487, 50 A.2d 409; Theisen v. Hoey, 29 Del.Ch. 365, 51 A.2d 61. Thus, in the Morrow case, Supra, it was held that he had no authority to establish a general rule allowing in accounts 'as a debt of the deceased only one-half of the balance of any mortgage owed on property held by the deceased and a surviving spouse as tenants by the entirety.' Determination of such a matter involves the exercise of judicial powers not conferred upon him. In our opinion, determination of the amount prior to be included in an account for attorneys' fees falls into the same category; it is the exercise of a judicial function not vested in the Register by statute or Constitution. Accordingly, we hold that the Register lacks the power to disapprove legal fees properly supported by voucher.

The contention accepted by the Court below...