Gardner v. Moss

Court of Appeals of Kentucky

Gardner v. Moss

96 S.W. 461, 123 Ky. 334, 1906 Ky. LEXIS 152

DecidedSeptember 25, 1906

StatusPublished

This text of 96 S.W. 461 (Gardner v. Moss) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gardner v. Moss, 96 S.W. 461, 123 Ky. 334, 1906 Ky. LEXIS 152 (Ky. Ct. App. 1906).

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Opinion

Opinion by

Chief Justice Hobson —

Overruling Motion.

Appellants have entered a motion for an allowance of a reasonable fee to the executor for the services of his attorneys in this court in his effort to probate the will; also for an allowance to the guardian ad litem for his services in this court; and for a retaxation of the cost so as to include these sums, the whole to be ordered paid out of the estate.

. The rule is that the allowance to the guardian ad litem must be made by the court appointing him; and that the allowance must be made by it to cover, not only his services in that court, but in this. Cochran v. Lee, 87 S. W. 769, 27 Ky. Law Rep. 1038. If a partial allowance has been made him to cover his services in that court, a further allowance may be made to cover his services since rendered, and if the case is off the docket, notice should be given of the application for the allowance to the parties in interest. The executor is entitled to his necessary reasonable counsel fees in this court no less than in the circuit court, and these, like his other cost on the appeal, should be paid out of the estate in his hands. He had reasonable grounds to take the appeal, as evidenced by the equal division of this court on the appeal, and is entitled to his cost in his reasonable efforts to probate the will under which he acted. But this matter, like the allowance to the guardian ad litem, should be settled first in the circuit court, and not in this court. The taxed cost in [336]*336this court, so far as it falls ou the executor and curator , will be paid by him out of the estate of the decedent in his hands as such, and he will be credited therefor in his settlement. The judgment for costs has become final, and cannot now be modified; as the cost was adjudg’ed against appellants jointly, each party appellant must bear his part of the burden; the executor’s part will be paid by him out of the estate generally, and if he pays more for one of the distributees, it will be so charged in the settlement of the estate.

Appellant’s motion is therefore overruled, but without prejudice to a motion in the circuit court for the relief indicated.

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Opinion by

Chief Justice Hobson —

Overruling Motion.

Appellants have entered a motion for an allowance of a reasonable fee to the executor for the services of his attorneys in this court in his effort to probate the will; also for an allowance to the guardian ad litem for his services in this court; and for a retaxation of the cost so as to include these sums, the whole to be ordered paid out of the estate.

. The rule is that the allowance to the guardian ad litem must be made by the court appointing him; and that the allowance must be made by it to cover, not only his services in that court, but in this. Cochran v. Lee, 87 S. W. 769, 27 Ky. Law Rep. 1038. If a partial allowance has been made him to cover his services in that court, a further allowance may be made to cover his services since rendered, and if the case is off the docket, notice should be given of the application for the allowance to the parties in interest. The executor is entitled to his necessary reasonable counsel fees in this court no less than in the circuit court, and these, like his other cost on the appeal, should be paid out of the estate in his hands. He had reasonable grounds to take the appeal, as evidenced by the equal division of this court on the appeal, and is entitled to his cost in his reasonable efforts to probate the will under which he acted. But this matter, like the allowance to the guardian ad litem, should be settled first in the circuit court, and not in this court. The taxed cost in [336]*336this court, so far as it falls ou the executor and curator , will be paid by him out of the estate of the decedent in his hands as such, and he will be credited therefor in his settlement. The judgment for costs has become final, and cannot now be modified; as the cost was adjudg’ed against appellants jointly, each party appellant must bear his part of the burden; the executor’s part will be paid by him out of the estate generally, and if he pays more for one of the distributees, it will be so charged in the settlement of the estate.

Appellant’s motion is therefore overruled, but without prejudice to a motion in the circuit court for the relief indicated.

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Bluebook (online)

96 S.W. 461, 123 Ky. 334, 1906 Ky. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-moss-kyctapp-1906.