Before McMILLIN, C.j., Southwick, P.j., And Coleman J.
The opinion of the court was delivered by: McMILLIN, C.j.
DATE OF JUDGMENT: 02/13/97
TRIAL JUDGE: HON. WOODROW WILSON BRAND JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS AND ESTATES
TRIAL COURT DISPOSITION: DENIAL OF EXECUTOR'S FEES AND EXPENSES AND ATTORNEY'S FEES IN THE ADMINISTRATION OF THE ESTATE.
DISPOSITION: REVERSED AND REMANDED - 3/23/99
MOTION FOR REHEARING FILED:
¶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.
¶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 part 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. ...