Howard v. Howard

38 App. D.C. 575, 1912 U.S. App. LEXIS 2173

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 22, 1912
• Docket: No. 2404
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The account was duly referred to the auditor, who heard evidence relating to the several items in controversy, and made a report covering the same. Exceptions thereto were overruled and the same confirmed. Hnder these conditions it is incumbent upon the appellant to show plain error or mistake in order to obtain a reversal of the confirmation decree. Magruder v. Drury, 37 App. D. C. 519, and cases therein cited.

The conditions of the case are peculiar, and, as argued by the appellant, call for the application of equitable principles where not in conflict with statutory requirements. Practically, the appellant is the only established creditor, his debt consisting of the $3,000 note aforesaid. He took charge of and conducted the intestate’s business several months prior to the latter’s death. The active conduct was intrusted by him to an employee. He kept no regular book account of the receipts and disbursements, and rendered no account to the administratrix upon her appointment. The check in payment of the life insurance policy was delivered to her in his house. Representing that he had paid $1,160 of indebtedness due by intestate, he demanded that she repay him ont of the proceeds of the insurance policy. She acceded to the demand, indorsed him the check, and received a check for the surplus. She testified that she was coerced into making the payment. Subsequently, upon his advice, she paid some smaller demands of his sons. He testified that she paid voluntarily, her desire being to get permission to continue the business. He made an error of $44 in his own favor in footing up the items to be paid by her. Both then thought that the business could be conducted at a profit, and that its continuance would increase its selling price. She was young and inexperienced, and their relations were then cordial.- While the evidence does not show that she paid the money under duress in the legal sense, nor does the auditor so report, yet she evidently relied upon appellant for advice. He was her father-in-law, and had managed the business during the son’s last illness. She had complete confidence, apparently, in his business capacity, as well as his desire to befriend her and her infant child. She took no other advice respecting' the transaction. With his express approval the court directed her to conduct the business until February 1, 1910, and then continued the order in force until December, when sale was ordered. None of the claims paid by her to him had ever been established against the estate. He is the only creditor, and the contest is between them. Hnder these circumstances it is difficult to- apply the rules regulating a formal administration for the benefit of creditors and distributees. The business- was carried on under the orders of the court under the agreement aforesaid, and this was supposed to be in the interest of all concerned. At the end the proceeds of sale amounted to considerably more than double the appraised value. According to the appellant’s own statement, the individual money of the appellee went into the business and enabled it to be carried on. In consideration of all these circumstances, the auditor concluded that appellant was estopped to deny the appellee’s right to reimbursement from the proceeds of sale, in preference to his indebtedness, and we are not convinced that he and the court approving his report committed reversible error.

2. The next assignment of error relates to the allowance of the item of $400 by way of exemption. Sec. 1105 of the Code [31 Stat. at L. 1362, chap. 854] enumerates the exemptions from forced sale. Among the items are tools and implements of the debtor’s trade and business, amounting to $200 in value, with $200 worth of stock for carrying on the business of the debtor or his family. Sec. 314 [31 Stat. at L. 1239, chap. 854] of the chapter relating to administration extends this exemption to decedents’ estates, and directs that it be distributed by the court to such members of the family as it sees proper. The contention is that the statute exempts specific property, and not the proceeds thereof. The implements of the business and the stock were sold together, it being apparently best for the estate. The $400 worth of the two exemptions were realized in the sale. All parties acquiesced in the sale as for the best interests of the estate. The widow did not relinquish her right to the exemption, and, as its value was realized by the sale, we perceive no error in the allowance to her of the proceeds.

3. We perceive no error in the allowance made for attorneys’ fees to the administratrix. She was entitled to the services of an attorney in winding up the estate, and there is no evidence that the services were not worth the sum allowed, or that they were exclusively for the personal benefit of the administratrix. Code, sec. 365 [31 Stat. at L. 1248, chap. 854].

There appears no error in the allowance to the administratrix for her services in conducting the business. It was not her duty as administratrix to do so; and the order of the court authorized her to employ necessary help, and to do all other acts necessary and proper in carrying on the business. She took active management of the business, giving her time and personal attention to it. There is no evidence that her services were not worth the sum of $50 per month that was allowed her.

5. The exception to the allowance of commissions at 2-J per cent on the receipts of the administratrix during the conduct of the business, we think should have been sustained. The exception is not to the allowance of any commission, but to its allowance upon said receipts. By the terms of the Code (sec. 365), sbe was entitled to commissions on tbe inventory, not under 1 per centum and not exceeding ten per centum. To this tbe allowance should be restricted. Tbe business was conducted on ber own application, and sbe was allowed compensation for so doing. A commission based tbereon was a double allowance, to wbicb sbe was not entitled.

So mucb of tbe decree as confirmed tbe credit for tbe entire item of commissions based on tbe receipts of tbe business is therefore erroneous. Tbe decree appealed from will therefore be modified so as to exclude tbe item of allowance for tbe gross sum of commissions, and as so modified, will be affirmed. Tbe costs will be taxed as costs of administration, and tbe cause remanded with direction to allow tbe administratrix commissions on tbe amounts of tbe inventory, under tbe provisions of sec. 365. It is so ordered. Modified and affirmed.