In re McGANNON'S ESTATE

In re McGANNON'S ESTATE
1915 OK 492
150 P. 1109
50 Okla. 288
Case Number: 4562
Decided: 06/22/1915
Supreme Court of Oklahoma

In re McGANNON'S ESTATE.

Syllabus

¶0 1. APPEAL AND ERROR--Overruling of Motion for New Trial--Failure to Assign as Error. Where the plaintiff in error fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented to this court to review errors alleged to have occurred during the progress of the trial.
2. EXECUTORS AND ADMINISTRATORS--Expenditures--Attorney's Fees--"Debt of Estate." The fees of an attorney, employed by a personal representative of a decedent in the business of the estate, are not strictly debts of the estate, but if such services are necessary and the charges reasonable, for work actually done, they are proper credits to be allowed in the settlement of the accounts of the personal representative.
3. SAME--Allowance of Accounts--Review. In such case, where the question of necessity and reasonableness of such fees is tried in the district court on appeal from an order of the county court allowing them, and on the hearing in the district court evidence is introduced, and the district court refuses to allow them, this court cannot review the judgment of the district court, in the absence of an assignment of error for overruling the motion for new trial.
4. SAME--Exceptions. Where, in an account filed by an administrator in the county court in 1909, certain credits are claimed by the administrator, but it nowhere appears in the record on appeal to this court that the county court has ever approved such account, persons interested in the estate are not estopped from excepting to any item in such account at a future accounting by the administrator.
5. SAME--Account--Disallowance of Claims--Discretion of Trial Court. Where two credits for commissions are claimed by an administrator, one for $ 9,449.02, embraced in an account filed in the county court in 1909, but never approved by that court, and the other for $ 310.54, for commissions claimed to have been earned since that time, held, that the administrator is entitled to commissions on that part of the estate fully administered, but that as regards the item of $ 310.54, in the absence of an assignment of error in overruling the motion for a new trial, this court cannot review the error, if any was committed, as the court may have proceeded on the theory that the estate was not fully administered. Held, further, in regard to the item of $ 9,449.02, that as the court did not adjudge that the administrator was nor entitled to these commissions, or that the amount was too large, but leaves the question open until a future settlement, such action is not an abuse of discretion and will not be reversed.

Dillard & Blake and Virgil Rule, for plaintiff in error.
Biddison & Campbell, for defendant in error.

DEVEREUX, C.

¶1 It will be noticed that the overruling of the motion for a new trial is not assigned as error, and the question arises in its absence, What is left for us to pass on in this case? In considering this question, it will be borne in mind that on appeal to the district court from the county court in probate proceedings, the trial is de novo, and is to be conducted in the same manner as if the case and proceedings had originated in the district court, and the district court has the same power to decide questions of fact that the county court had. Williams' Constitution of Oklahoma, sec. 201 (article 7, sec. 16); Rev. Laws 1910, sec. 6515. On such appeal, however, the issues must remain the same as those tried in the county court, as the jurisdiction of the district court is only appellate, and no new issues can be injected into the case in the district court. Parker v. Lewis,

Although "a motion for a new trial be filed in the court below upon grounds for which a new trial may be granted and the motion be overruled, the Supreme Court will not consider these grounds unless, in the petition in error, the overruling of the motion for a new trial is assigned as error."

¶2 In Beall v. Mutual Life Ins. Co.,

"Where the appellant fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below."

¶3 In Martin v. Gassert,

"All questions assigned in the petition in error in this case for the consideration of this case, and argued in the brief of counsel for plaintiff in error as grounds for reversal, must have been, in order to be properly assignable here, set up and urged in a motion for a new trial. When the motion for new trial was overruled, this should have been assigned as error in their petition in error. Now the petition in error makes six assignments of error, but none of these assignments of error are on the ground that the court erred in overruling the motion for a new trial. This we think is a necessary assignment of error. We think, under the holdings of this court, that it is not only necessary that the grounds for reversal should have been set up in the motion for a new trial, but when the motion for new trial is overruled, that that should be assigned as error, and that this is a necessary assignment of error before this court can consider errors occurring during the trial."

¶4 And the same point is decided in Whiteacre v. Nichols,

"As the overruling of defendant's motion for a new trial is not assigned as error in the petition in error, the only error therein assigned which we can review is that the court erred in sustaining said demurrer."

¶5 In Meyer v. James,

"Where appellant fails to assign in his petition in error, as error, the overruling of a motion for a new trial, no question that seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such cannot be reviewed."

¶6 And the same point is decided in St. L., I. M. & S. Ry. Co. v. Dyer,

In Turner v. First National Bank,

"The only question properly raised by the petition in error is that presented by the first assignment of error, Does the petition state a cause of action?"

¶7 And see, also, Adams v. Norton,

"An administrator is entitled to credit for payments for the services and traveling expenses of his attorney, not exceeding a reasonable compensation for the labor actually performed, when the same were necessary to enable him to properly perform the duties of his trust."

¶8 But we cannot pass on this question in the present state of the record, because the court below may have found that the expenses were not reasonable or proper. This, therefore, is an error, if there be one, committed at the trial, which we cannot review under the present assignments of error. As to the action of the court in sustaining exception No. 14 to the report of the administratrix allowing her $ 320 commissions, the record does not disclose the reason which governed the trial court in excluding these commissions, and his judgment and finding on this point, even if erroneous, cannot be reviewed in the absence of an assignment of error for overruling the motion for a new trial. The eighth exception is because the court reduced the attorney's fee from $ 5,000 to $ 2,000. This clearly is not before us on the record. Services of an attorney rendered the administrator in the settlement of an estate are not a debt of the estate, but, if necessary, the administrator will be allowed, in the settlement of the estate, such sums as are reasonably expended for such services, but in allowing such claims they should never exceed just compensation for such legal assistance as was necessary to enable the administrator to properly discharge the duties of his trust. In re Moore Estate, 72 Cal. 335,

"That the item of November 26, 1909, for commission as per voucher No. 17, to the amount of $ 9,449.02, is disallowed as an item of credit, and ordered stricken for the reason that such allowance is premature."

¶9 This assignment of error is open for decision in this court because the ruling of the court is apparent on the face of the record that the allowance was premature. This judgment of the court does not pass upon the right of the administratrix to commissions, but shows that such commissions are premature at this time. It is insisted by the plaintiff in error that the administratrix was entitled to commissions on the filing of each annual settlement up to that time. The defendant contends, however, that no commissions can be allowed at all until the final settlement of the estate. We think the true rule lies between the two. In Re Owen's Estate, 32 Utah 469,

"Under the circumstances disclosed by the record, nothing can be allowed the respondent for commissions until the final settlement of the estate."

¶10 In Estate of Barton, 55 Cal. 87, it appears that there were successive administrations, and the court held that commissions could not be allowed until the estate was finally settled, but they add:

"Of course we are not considering the right of the outgoing administrator to commissions upon property which has been by him fully administered upon."

¶11 We think the true rule in such cases is laid down by the Supreme Court of Montana, in Re Ricker's Estate, 14 Mont. 153,

¶12 By the Court: It is so ordered.

ON PETITION FOR REHEARING.

¶0 This petition for a rehearing goes to the action of the court in refusing to consider exceptions Nos. 1, 2, 6, and 7, which are set out at large in the original opinion, on the ground, as stated in the petition for rehearing:

"All the above items were awarded and allowed under judgment and decree of the county court upon the approval of the third term settlement made November 26, 1909."

¶1 The record shows that what is called a third term settlement was filed in the county court in 1909, showing a balance due the estate of a large sum, but, as far as the record shows, the county court took no action on this account, and rendered no judgment confirming it. If there was any such judgment of the county court it should have been presented in some way to the trial court. The filing of an account by an administrator in the county court does not raise a presumption that the court has either approved or disapproved it, but if the court has taken any action on it, it must be shown by the records of that court. We reaffirm what was said in the original opinion, that if this account of 1909 had been regularly confirmed by the county court, and no appeal taken therefrom within the time allowed by law, then it would have become res adjudicata, but we are bound by the record, and cannot go outside thereof and decide cases on questions not presented to the trial court, and not before us on the record. From all that appears in the record, the administratrix filed an account in 1909, which lay in the county court until 1911 without action, when another account was filed, taking as a basis the balance shown in the 1909 account, and to this account the exception was filed, the eighth exception being as to the balance admitted to be due by the administratrix in 1909, as shown by the original opinion. In the condition in which the record comes to this court, this was proper, because, as far as the record shows, no action of any kind was taken by the county court on this account, and until such act on was taken, any person interested in the estate had a right to except thereto. If the account of 1909 showed a smaller amount due the estate than was proper, and such account was never approved, any person interested in the estate had a right to except thereto when a new account was filed, taking such balance as the basis for the new account. The petition for rehearing proceeds on the mistaken theory that an order of the county court was made approving the settlement of 1909, and that such order was before the trial court, and appears in the record. No such order appears, and as far as this appeal is concerned, no such order was ever made, for it has become axiomatic that what does not appear will not be presumed to exist. In Broom's Legal Maxims, p. 131, it is said:

"This well-established maxim in legal proceedings is founded on principles of justice as well as law, and applies where a party seeks to rely upon any deed or writings which are not accounted for or supplied in the manner which the law prescribes, for in such case they should be treated as against such party as if nonexistent."

¶2 If the plaintiff in error had introduced in evidence any order of the county court approving the settlement of 1909, a very different question would have been presented, but it was not produced, and we cannot presume it exists. We therefore recommend that the petition for rehearing be denied.

¶3 By the Court: It is so ordered.