Wells v. Evans

740 So. 2d 332, 1999 Miss. App. LEXIS 117
CourtCourt of Appeals of Mississippi
DecidedMarch 23, 1999
DocketNo. 97-CA-00369 COA
StatusPublished
Cited by1 cases

This text of 740 So. 2d 332 (Wells v. Evans) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells v. Evans, 740 So. 2d 332, 1999 Miss. App. LEXIS 117 (Mich. Ct. App. 1999).

Opinions

McMILLIN, C.J.,

for the Court:

¶ 1. This case involves a dispute between an executor of a testatrix’s estate and a beneficiary under the will over the co-executors’ fee request. Two disputes are presented to this Court for resolution. One involves the chancellor’s decision to deny both co-executors’ requests to be reimbursed for certain out-of-pocket expenses. The other, a more substantial dispute, involves the chancellor’s denial of one co-executor’s request for compensation in an amount of approximately $48,000. That request was denied based on the fact that the co-executor’s law firm was providing legal services to the estate for which compensation was being separately sought. In the view of the chancellor, “a fiduciary may not claim for himself a double fee acting individually as an executor and as an attorney.” Because it involves an unsettled issue of statutory interpretation, we will deal first with this latter issue.

I.

Facts

¶ 2. Frances W. Thomas died in 1988 leaving a will that distributed an estate valued in excess of $6,000,000 among her two daughters, Frances Evans and Ann Wells, and a number of grandchildren. In her will, Thomas named T. Calvin Wells, John P. Wells, and William P. Wells as co-executors of the estate. The co-executors were the sons of Ann Wells, one of the decedent’s daughters. T. Calvin Wells was also a practicing attorney and a member of a multi-member law firm.

¶ 3. The probate of this estate was anything but smooth. It began with an unsuccessful contest of the will itself by Frances Evans. Thereafter, there seems to have been a continuing conflict between those competing forces aligned with the two daughters of the testatrix. The dispute came to a head when the co-executors, as a [334]*334part of their third annual accounting to the chancellor, submitted the fee requests discussed above. Evans, in her capacity as a beneficiary, filed a formal protest to the allowance of such fees, alleging that “the executor and his law firm have charged both executor fees and attorney’s fees which Frances Pope Evans objects to and requests the Court to disallow.” (The request for payment by the co-executors had also included separate claims by two of the co-executors for reimbursement for some travel expenses and long distance telephone calls. Evans’s objection did not specifically address the separate request of the non-attorney co-executor.)

¶ 4. The chancellor found that the services rendered by other members of the co-executor’s law firm had benefitted the estate and ordered those fees to be paid. However, he denied any further payment to either co-executor beyond those amounts previously allowed in connection with earlier interim accountings. The primary effect of this ruling was to disallow T. Calvin Wells’s rather substantial statement for services since it appears that the remaining co-executors were either not active in the probate proceedings or, if they were, elected not to seek compensation for their work. Nevertheless, the chancellor’s ruling, without separately addressing William P. Wells’s claim for expenses, had the effect of disallowing that claim.

A.

The Issue of a Double Fee

¶ 5. We cannot determine exactly what the chancellor intended by the above-quoted remark that a fiduciary may not “claim for himself a double fee.” If he meant to prohibit the practice of an executor requesting two separate fees for the same services, then we would think his remarks to be entirely correct. However, the facts of this case do not permit so simple a resolution of the problem facing the Court. The co-executor in this case submitted an itemized statement of his work, and his law firm submitted a separate itemized statement for work claimed to have been done on behalf of the estate by members of the firm other than the co-executor. There is no explicit claim that these two separate billings contained any duplication of services to the estate. Rather, the chancellor decided the case on the more fundamental notion that an attorney acting as an executor must make an election as to whether he will be compensated for his work as the fiduciary of the estate or in his role of providing legal services on behalf of the estate.

¶ 6. It was Evans’s view (shared by the chancellor) that there was no distinction to be drawn simply because the separate claim for legal fees was submitted by the co-executor’s law firm and represented services performed by attorneys in the firm other than the co-executor himself. In this view, the prohibition against two separate claims for compensation must be decided exactly as if the co-executor had been a sole practitioner and had physically performed all the services himself. We conclude that this is the proper way to treat the matter for purposes of analysis and will proceed with our discussion in that light.

¶ 7. Evans argues that the issue before the court has long since been decided against the co-executor in the' case of Owen v. Stoner, 148 Miss. 897, 114 So. 613 (1927). In that case, Stoner was an attorney who was named executor of the estate of McGehee. In his final accounting, Stoner asked that he “be allowed a reasonable attorney’s fee in this behalf.” Id. at 405, 114 So. at 613. The chancellor permitted Stoner a fee of $2,000 and the beneficiaries under the will appealed. Id. at 405, 114 So. at 614. The Mississippi Supreme Court reversed the award, saying it was not proper under the statute concerning such matters for the chancellor to assess attorney’s fees directly against the estate. Id. at 407, 114 So. at 614. The court remanded for the chancellor, instead, to set “such commissions as the court may [335]*335find should be allowed the appellee [Stoner] as executor of this estate, under the law.” Id. at 410,114 So. at 615.

¶ 8. We do not find the Owen v. Stoner case particularly helpful. That case was decided upon principles of law that even the most seasoned estate attorney might find shocking in view of the way that common sense (in the form of statutory enactment) has long since overridden common law. The rationale of Owen v. Stoner begins with the proposition that, at common law, the position of executor of a decedent’s estate was one of honor and trust, so that the idea that one would, in addition to this signal honor, expect monetary payment was unheard of. Id. at 406, 114 So. at 614. Attached to this principle against compensating an executor was the corollary that, if the executor required the assistance of counsel in discharging the duties of his honorific position, the expense was personal to the executor and not one for which he could be reimbursed. Id. at 406-407, 114 So. at 614. The Mississippi Legislature long ago saw fit to statutorily alter these common law principles that sound noble on their face but, perhaps, in the rough-and-tumble of the real world, were serving to discourage qualified people from undertaking the duties of such office solely for the glory that might attach to the position. First, the Legislature adopted a statute permitting the chancellor to make a reasonable allowance out of the estate to the executor as compensation for his services. Then, it adopted another statute that permitted the executor, in requesting compensation for his services, to include a reasonable amount for payments the executor may have made to an attorney assisting him in the discharge of his 'fiduciary duties. Id. at 407,114 So. at 614.

¶ 9. Owen v. Stoner,

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Bluebook (online)
740 So. 2d 332, 1999 Miss. App. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-evans-missctapp-1999.