Reversing.
This appeal is prosecuted by the administrator with the will annexed of the estate of Lucy A. Carpenter, from a decree of the court settling the accounts of the appellant as administrator.
Lucy A. Carpenter died May 1, 1922, and her will was admitted to probate the following September, at which time a personal representative was appointed. A suit was filed to obtain a construction of the will and to settle the estate. The circuit court held that Mrs. Carpenter died intestate as to a portion of her property and the judgment was affirmed by this court on November 21, 1924. Walton Bank Trust Co. C. v. Carpenter et al.,
The court charged the administrator with two-thirds of the rental value of the land for the years 1923 and 1924, and compelled it to account for $520 upon that score.
The administrator paid $541.23 to the Erlanger Bank upon a note and was held responsible to the estate therefor on the ground that the testatrix was merely a surety on the obligation and not legally liable therefor, since she was a married woman when she signed it. The court held the administrator liable to the estate as for interest upon several items. The present appeal involves the rulings mentioned and the adequacy of allowances made to the administrator for itself and for its attorneys. The administrator was allowed $400 for itself and $744.10 for the services and expenses of its counsel.
A preliminary question of practice is presented and must be determined in advance of a decision upon the merits. Soon after the settlement suit was filed, a reference *Page 631
to the master commissioner was made with directions to ascertain and report claims against the estate, and to audit and settle the accounts of the administrator. Several separate reports were filed. No exceptions were filed to any of them, except those submitted by the administrator to the charge against it for emblements. A rereference was ordered covering the entire administration of the estate. The master reported the settlement filed with him by the administrator and the exceptions were addressed to these stated accounts, and not to the master's reports. They were entitled, however. "Exceptions to Report of Settlement." The practice was irregular, and the circuit court would have been justified in directing the regular procedure. Roberts' Ex'r v. Dale, 7 B. Mon. 199; Town of Highland Park v. Wilson,
The questions presented here have been well briefed, are easily understood, and may be disposed of without any unreasonable or unnecessary burden on the court, and further delay would not be warranted. Cooper v. Williamson,
There was no basis for holding the administrator liable for any loss incurred by the supposed receiver. The administrator was not a party to the partition suit, and the attempted appointment of the receiver operated, at least, to make him an authorized agent of the parties to the partition suit, who consented to the terms of the agreed order. The attorneys for all parties to that suit signed the order, which was approved by the judge in vacation, and it constituted all the authority the receiver ever had. A receiver may be appointed by the court, or *Page 632 by the judge thereof during vacation. Civil Code Practice, sec. 298. A receiver may act as such under an agreed order of the parties, and his sureties, in such case, are bound for his acts. Claflin v. Gibson, 51 S.W. 439, 21 Ky. Law Rep. 337. Certainly the receiver himself can be held to account to the parties entitled thereto for any funds that came into his hands as such receiver. The court should have required the receiver to pay over the sum of $432.43, which he held subject to the order of the court, instead of charging the amount to the appellant. If any loss was incurred by the supposed receiver in accepting the note of Doan, it was not chargeable to the administrator. The attorneys representing the administrator also represented other clients, and the advice they gave the receiver respecting his rights was given in good faith in the well-founded belief that the agreed order had been duly made and entered. The administrator was not required to plead to the response filed by the receiver to a rule against him, and no statement contained therein afforded any basis for a judgment against the administrator. Indeed, there is nothing to show that the so-called receiver was negligent in taking or failing to collect the note, or became liable therefor. The Doan note, upon the record, should not have been charged to the administrator
The items of $500 for the household goods, $788.75 for emblements, and $520 for the failure to collect rent for the realty from Wm. J. Carpenter for the years 1923 and 1924, may be considered together, since they are governed by the same principles. It may be assumed that the estate of Lucy A. Carpenter was entitled to collect these items, except in so far as the surviving husband may have been justified in retaining the portion thereof not needed to pay debts and belonging to him on final distribution. But it does not follow that the administrator of Lucy A. Carpenter should be held liable therefor. The administrator of Wm. J. Carpenter is a party to this record and is liable for the debts due from his decedent. The failure of the administrator to collect these items has not caused any loss, since it is not shown that the estate of Wm. J. Carpenter is insolvent or inadequate to account for what may be due the estate of Lucy A. Carpenter.
The administrator is liable for any loss to the estate resulting from its negligent failure of duty (May v. Walter,
The item of $541.23 paid the Erlanger Bank was charged to the administrator on the theory that Lucy A. Carpenter was a surety for R.W. Carpenter on the note and being a married woman was not bound thereby. This court, on the former appeal, referred to the provisions of the will of Mrs. Carpenter charging her sons with the amount advanced in that form and stated (205 Ky. page 634, 266 S.W. 358, 360):
"Ben and Wood should be required to account to the estate for the money borrowed from the testatrix." In her will Mrs. Carpenter had written: "I am on Ben's notes, but I have to sign first as they wont take me as security and I am on Wood's note all so far only $400.00, and had to sign first as they wont take me as security. . . . I have not got Ben's nor Wood's notes, but they know full well and wont deny that they owe me every dollar."
There was testimony that Mrs. Carpenter borrowed the money upon her credit for the accommodation of her sons, that it was put in her account, and lent by her to them. It is argued that she was not liable under the circumstances, and that her personal representative should be denied credit for paying the debt. Ample ground appears for holding that she was liable (Scott v. First National Bank,
The administrator was held liable for interest on certain items with which it was charged. Mrs. Carpenter had executed notes to obtain money for Ben Carpenter, referred to in the preceding paragraph of this opinion, and the administrator made payments upon these notes. It was held liable for interest thereon from the date of the payments.
The payments were proper, as we have seen in disposing of the R.W. Carpenter transaction, and the administrator was not to be charged with interest thereon.
It is argued that the administrator was liable for interest on the balances in its hands after the lapse of two years. Section 3859, Ky. Stats.; Howe v. Winn,
The question whether the appellant incurred liability by delaying unreasonably the settlement of the estate (11 Rawle C. L. Sec. 156, p. 147; Bemiss v. Widows' Orphans' Home,
The amount of receipts and disbursements made by the administrator aggregated $18,136.66, and it asked an allowance of 5 per cent. thereon, the full amount authorized by section 3883, Kentucky Statutes. The court refused to allow the full commission and fixed the administrator's compensation at $400. Appellees seek to justify the action upon the grounds: (a) That the discretion of the court was not abused. Armstrong v. McFarland's Adm'r,
There is no reason apparent in this case for denying to the administrator the commission authorized by law. Evans v. McVey,
The trial court labored under the impression that the administrator had been lacking in diligence and held it liable for a number of charges which we have seen was not warranted by the facts appearing in the record. The full commission of 5 per cent. on the receipts and disbursements should be allowed the appellant. In regard to the amount allowed for expense and fees of counsel, the record shows that much litigation has attended the administration of the estate. We have no testimony or affidavits as to the amount actually expended for counsel fees. The administrator was entitled to employ competent counsel and to pay reasonable compensation for their services (Bohn v. Bohn's Guardian,
Enough is apparent on this record to raise grave doubts as to the sufficiency of the allowance for counsel fees. But there should be a motion for a definite sum, and the facts affecting the amount to be allowed should be adduced. We have concluded, in view of the state of the record, to reverse the judgment, and remand the case to the circuit court for a further hearing to determine what amount, under the circumstances, would constitute a reasonable and fair recompense to counsel for the services *Page 636 rendered the personal representative in administering the estate.
Judgment reversed, for proceedings not inconsistent with this opinion.