Dorothy C. Strait v. Daniel Collins
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-CA-00850-COA
IN THE MATTER OF THE ESTATE OF SUSIE E. COLLINS, DECEASED:
DOROTHY C. STRAIT, EXECUTRIX AND LAVELL COLLINS
v.
DANIEL COLLINS, LOUISE KING, JULIE CHILDRESS, IVA NELL
SWINDLE AND CECIL GLASS
APPELLANTS
APPELLEES
DATE OF JUDGMENT:
04/11/1997
TRIAL JUDGE:
HON. EDWARD C. PRISOCK
COURT FROM WHICH APPEALED: WINSTON COUNTY CHANCERY COURT
FOR APPELLANTS:
REUBEN W. BOYDSTUN JR.
FOR APPELLEES:
C. HUGH HATHORN
NATURE OF THE CASE:
CIVIL - WILLS, TRUSTS AND ESTATES
TRIAL COURT DISPOSITION:
WILL VALIDATED; EXECUTRIX DENIED FEES
DISPOSITION:
AFFIRMED - 5/4/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/25/99
EN BANC
KING, J., FOR THE COURT:
¶1. This is an appeal from the Winston County Chancery Court's April 11, 1997 order that all the heirs of
the testatrix, Susie Collins, share equally in the distribution of her estate and that same court's subsequent
order of June 4, 1997, which denied appellant's motion for attorney and executrix fees incurred in
connection with the probation of her mother's will. Feeling aggrieved, the appellant has appealed and
assigned the following as error:
1. Whether the chancery court erred in declaring the will void on the ground that the appellant
was given sole discretion in the equitable distribution of the estate among the named heirs.
2. Whether the settlement agreement entered into by the parties is binding.
3. Whether the chancery court erred in denying the appellant's motion for executrix and attorney
fees.
4. Whether the chancery court committed reversible error and an abuse of discretion in
authorizing counsel to enforce an order that said counsel prepared.
¶2. The Mississippi Supreme Court, by order dated April 17, 1998, dismissed all claims as being untimely
except the issues of costs and fees. We now proceed to dispose of these matters on their merits.
Applicable Standard of Review
¶3. The decision whether to award attorney's and executrix's fees is a matter addressed to the sound
discretion of the chancery court. In the absence of an abuse of that discretion, this Court will not disturb the
chancellor's rulings. Schwander v. Rubel, 221 Miss 875, 897, 75 So. 2d 45, 54 (1954); Ralston v. Bank
of Clarksdale, 188 Miss 345, 345, 194 So. 923, 924 (1940).
Discussion
DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION FOR ATTORNEY
AND EXECUTRIX FEES?
¶4. The executrix, Dorothy Strait, argues that the chancery court erred in denying her request for attorney
and executrix fees because the estate was administered for more than four years and because considerable
time and work had been expended to protect the estate from the appellees.
¶5. Mississippi Code Annotated § 91-7-281 (Supp. 1998) reads in pertinent part as follows:
In annual and final settlements, the executor, administrator, or guardian shall be entitled to credit for
such reasonable sums as he may have paid for the services of an attorney in the management or in
[sic] behalf of the estate, if the court be of the opinion that the services were proper and rendered in
good faith. . . .
¶6. Although attorney's fees are the personal obligation of the administrator or executor, where they have
benefitted the estate, they may be paid out of the estate as administration expenses. Scott v.
Hollingsworth, 487 So. 2d 811, 812-13 (Miss. 1986); Hutton v. Gwin, 188 Miss 763, 763, 195 So. 2d
486, 488 (1940). But, where the estate has not benefitted by those services, equity suggests that the estate
should not pay for those services.
¶7. There are several factors which a chancellor must weigh prior to setting an attorney fee award. The
supreme court in Scott, detailed those factors in the following manner:
The factors which the chancery court considers in fixing the amount of reasonable compensation are
varied. Among those factors, however, are the following: time, skill, the responsibility, the monetary
value of the estate administered and its liquidity, the speedy disposition of the business, the services of
the attorney, the practice of attorneys in that court and the charging of fees for similar services, the
complexity of the issues, and the necessity of litigation concerning the estate business.
Scott 487 So. 2d at 814 (citations omitted).
¶8. Our review of the record reveals that the chancellor approved $2,500 in attorney's fees to be paid from
the estate. The executrix now complains that the chancellor should have allowed an additional 7% of the
value of the gross estate to be allocated for executrix and attorney's fees.
¶9. The record reveals that by order dated, August 7, 1997, the executrix was found in civil and criminal
contempt for failing to abide by a previous court order and was subsequently jailed. The record also
suggests that the executrix received legal advice in connection with the contempt action from the same
counsel whom she retained on behalf of the estate.
¶10. Those services rendered in connection with the contempt citation did not have the purpose of
benefitting the estate, and, therefore, the resulting fees are not properly payable from the estate. In this
regard, we cannot say that the chancellor abused his discretion by not allowing additional attorneys fees.
See Clarksdale Hospital v. Wallis, 187 Miss. 834, 834, 193 So. 627, 628 (1940)("Where the services
were rendered for the sole benefit of an individual or group of individuals, interested in the estate, as against
the others interested, such an allowance is unauthorized.").
¶11. We now turn to the denial of executrix fees. The executrix argues that the chancery court erred in
denying her executrix fees.
¶12. Mississippi Code Annotated § 91-7-299 (Rev. 1994) reads as follows:
On the final settlement the court shall make allowance to the executor or administrator for the
property or the estate which has been lost, or has perished or decreased in value, without his fault;
and profit shall not be allowed him in consequence of increase. The court shall allow to an executor or
administrator, as compensation for his trouble, either in partial or final settlements, such sum as the
court deems proper considering the value and worth of the estate and considering the extent or
degree of difficulty of the duties discharged by the executor or administrator; in addition to which the
court may allow him his necessary expenses, including a reasonable attorney's fee, to be assessed out
of the estate, in an amount to be determined by the court.
¶13. However, in the event that the executrix is found to have maladministered the estate, the chancellor is
within his discretion to disallow fees. Hollingsworth, 487 So. 2d at 815. In this case, the chancellor found
that the estate was administered in a "grossly negligent" manner. In support of this finding of negligent
administration, or maladministration, the chancellor cited the executrix's noncompliance with court orders
which eventually culminated in her being found guilty of civil and criminal contempt on August 7, 1997.
¶14. In light of the chancellor's finding of negligent administration of the estate, we decline to disturb his
ruling.
¶15. THE JUDGMENT OF THE WINSTON COUNTY CHANCERY COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, COLEMAN, DIAZ, IRVING, LEE, PAYNE,
AND THOMAS, JJ., CONCUR.
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