1. This proceeding was ex parte from the beginning and still is, but ex parte proceedings, if otherwise proper, may be decided by this court.
2. Fees for the services of an attorney at law are legitimate expenses in the representation of an estate according to the particular facts and circumstances of each case.
3. Where minor children are involved, upon the death of the father the mother is primarily liable for their support, maintenance, and education, *Page 812 and she would be entitled to reimbursement for expenditures made by her for their support and maintenance, or to pay directly therefor out of the separate estates of such children, only where it appeared that the mother was in such financial circumstances that she was unable to provide such support and maintenance and that the children's separate estates were sufficient for such purpose.
4. In the present case it clearly appears from the record and the agreed statement of fact that the ordinary, in denying compensation to the guardian for his services as an attorney at law, was not exercising the discretion vested in him by law, but predicated his decision upon an erroneous concept of the law, to wit: that it was not the legal duty of a mother to support her minor children, the father being dead and they having separate estates inherited from their father, although she may have been amply able to do so; and that, except for this erroneous concept of the law, in which he exercised no discretion at all, he would have rendered a judgment allowing the fee to the guardian for his services as an attorney at law in this matter.
5. The assignment of error to this court, however, is on the judgment of the superior court, and, on appeal to the superior court, the action was de novo. The judge of the superior court was vested with the same discretion as the court of ordinary, and nothing appears in the record to indicate that he failed to exercise this discretion or that he based his decision upon an erroneous conception of the law. A finding in favor of the application of the guardian, under the law and facts, was not demanded, and it cannot be held by this court that the judge of the superior court erred in denying the relief sought by the guardian on the appeal to the superior court.
DECIDED OCTOBER 22, 1948. A. J. Whitehurst, as guardian of Tommy Frank, Norwood, Scarlett, Sarah Joe, and Terry Redfern, filed a petition in the Court of Ordinary of Thomas County seeking extraordinary compensation for services rendered as an attorney in making an investigation and in bringing an action before the Ordinary of Thomas County seeking to have an order granting an encroachment upon the wards' estates for their support set aside, modified, or vacated. After a decision in the court of ordinary adverse to the guardian, the case was appealed to the superior court.
On the trial before the judge of the superior court, a stipulation of the following facts, among others, was made by A. J. Whitehurst and A. M. Singletary, Ordinary of Thomas County. Earl Redfern died and was survived by his widow, Mrs. Elois Redfern, and five minor children, Tommy Frank, Norwood, Scarlett, Sarah Joe, and Terry Redfern. The widow became administratrix *Page 813 of the estate. Mrs. Redfern was unable to make bond as guardian of the minor children, and A. J. Whitehurst, County Administrator and ex-officio County Guardian, was selected and qualified as guardian of the estates of the minor children. On February 11, 1946, Mrs. Redfern turned over to A. J. Whitehurst, as such guardian, $5919.22 in cash, and United States War Bonds of $3000 purchase value, the property of various of said minor children. This left a balance due by her, as administrator, to the guardian, of $3479.05. She was granted leave by the court to sell the farm in Brooks County, which had been set aside as part of the year's support, in order to secure this balance due by her as administratrix, and advised the guardian that she was without means to support the minor children. Based on this information, the guardian petitioned the court of ordinary for an order to encroach upon the corpus of the estates of the minor children for the purpose of their maintenance, support, and education, and an order was granted giving the mother $100 per month from the estates of the wards for this purpose. While such payments were being made, Mrs. Redfern advised the guardian that this amount was insufficient for the purpose provided, and at the same time the guardian was advised through the grandfather of the minor children, and others, that the mother had a separate estate of her own and was well able to support and maintain the children without encroaching upon the corpus of their estates. The guardian investigated these reports as to the financial ability of the mother, and found a security deed recorded in Brooks County from C. F. Collins to her, securing a debt of $8400, payable at the rate of $150 per month, and another security deed recorded in Cook County from G. W. Stripling to her, securing a debt of $5000, payable $500 per year through 1954, and also found that she was doing a banking business with the Bryan Bank in Adel, Georgia. Based on this information, the guardian, on November 5, 1946, petitioned the Court of Ordinary of Thomas County for an order requiring Mrs. Redfern to show cause why the previous order authorizing encroachment upon the corpus of the estates of the five minor children should not be modified, set aside, or vacated. At a hearing it was shown to the satisfaction of the court that, although Mrs. Redfern had in the past had considerable money, at that time she was not *Page 814 financially able to support and maintain the minor children, and the ordinary modified and changed his previous order so as to permit an encroachment upon the corpus of the estates of the five minor children to the extent of $200 per month. The guardian then petitioned the ordinary for $125 as extraordinary compensation for his services as an attorney at law in making the investigation and in seeking to have the order of the court of ordinary granting the encroachment of $100 per month modified, set aside, or vacated. The ordinary denied this compensation.
From the record presented to this court, it appears that in denying compensation to the guardian, the ordinary passed the following order: "it appearing that there could be no obligation on the part of the mother of said wards to support them out of her personal estate when said wards had an estate of their own derived from inheritance from their father, and that the service rendered by said guardian in said matter could have in no way benefited his said wards, it is therefore considered, ordered, and adjudged that no extra compensation be allowed to A. J. Whitehurst, as guardian of Tommy Frank, Terry, Norwood, Scarlett, and Sarah Joe Redfern for his services in the action mentioned in the petition."
Included in the stipulation of facts between the guardian and the ordinary when the case was heard by the judge of the superior court is the following statement: "It is agreed that the sum sought, to wit, $125 as extraordinary compensation is not an excessive amount of fee for the services performed and expense incurred, and the only reason for the disallowance of the same by the ordinary, from which this appeal arose, was due to a difference of opinion between the ordinary and the guardian as to whether or not, even had the mother been extremely wealthy, the action could have been of any benefit to the estate of the wards, the ordinary taking the position, even had she the means, the guardian could not have prevailed and caused a termination of payments to her from the corpus of the estate of the wards for their maintenance, support, and education, while the guardian took the position and based his opinion upon the opinion . . in the case of Pettigrew v. Williams [65 Ga. App. 576, 16 S.E.2d 120], and particularly the language . . beginning with the last paragraph thereof on page 587 through, and including the first *Page 815 paragraph of page 589 thereof, that it was his duty to cause a termination, were it proved that the mother had ample estate, of the encroachment upon the corpus of the wards' estates."
The appeal in the superior court was heard before the judge without the intervention of a jury, and he passed an order denying the relief sought by the appeal; and the case is here on exceptions to that judgment. 1. This action was ex parte in the court of ordinary. On appeal to the superior court, the ordinary was named as appellee, although this was neither proper nor necessary, for, as ordinary, he could not be affected in any way by the outcome of the litigation. On exception to this court the ordinary was named as the defendant in error and served with the bill of exceptions, but he made no appearance in this court, and will not be affected by the judgment of this court, and therefore cannot be considered either as a proper or necessary party. The proceeding was ex parte from the beginning and still is. Under the provisions of Code § 6-201, the guardian had the right to appeal the decision of the court of ordinary to the superior court, and by the provisions of the Constitution (article 6, section 2, paragraph 8; Code, Ann., § 2-3708), one of the functions of the Court of Appeals is for the trial and correction of errors of law from the superior courts. Code § 6-916 provides: "If the proceedings in the court below shall be ex parte, and there is no opposite party, notice to no one is necessary." This rule of law with reference to bills of exceptions first appeared in the Code of 1863 ( § 4168), and was in the same language then as it is in the present Code section. This indicates that the hearing of ex parte proceedings in the Supreme Court was contemplated as far back as 1863, and, of course, the same rule would apply to the Court of Appeals. The Supreme Court before 1863 had heard and passed on ex parte matters (see Findlay v. Whitmire, 15 Ga. 334; Glisson v.Carter, 28 Ga. 516, 519; Ex parte Burney, 29 Ga. 33); but it seems that there was no statutory provision for doing so at that time.
2. Extra compensation and traveling expenses shall be allowed to guardians upon the same principles as to administrators. *Page 816 Code, § 49-223. "An administrator required to travel out of his county in the discharge of his duty shall be allowed the amount of his actual disbursements, to be proved by his own statements under oath. The ordinary may also allow him a reasonable compensation for the time devoted to this service: Provided, under the circumstances, the ordinary adjudges such additional compensation a proper charge against the estate." § 113-2007. "In other cases of extraordinary services, extra compensation may be allowed by the ordinary, but in no case is the allowance of extra compensation by the ordinary conclusive upon the parties in interest." § 113-2008. In the administration of estates, in a proper case, fees may be allowed as extraordinary compensation for the services of an attorney at law. See Davidson v.Story, 106 Ga. 799, 801 (32 S.E. 867); Clements v.Fletcher, 161 Ga. 21 (3d), 48 (129 S.E. 846); Reynolds v.Dorsey, 192 Ga. 538 (15 S.E.2d 779), concerning attorney's fees for executors, to which, under the provisions of Code § 113-1101, the same rules are applicable as for guardians and administrators. Code § 113-1522 authorizes an administrator to provide competent legal counsel for the estate he represents according to the needs of the estate. Therefore, it appears that fees for the services of an attorney are legitimate expenses in the representation of an estate according to the particular facts and circumstances of each case.
3. "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child." Code, § 74-105. "Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him." § 74-106. "Every guardian shall be allowed all reasonable disbursements and expenses suitable to the circumstances of the ward committed to his care. The expense of maintenance and education must not exceed the annual profits of the estate, except by the approval of the ordinary previously granted. The ordinary may, in his discretion, allow the corpus of the estate, in whole or in part, to be used for the education and maintenance of the ward." § 49-202. Where minor children are involved, upon the death of the father the mother is primarily liable for their support, maintenance, and education. Edwards v. Addison, 187 Ga. 756, *Page 817 759 (2 S.E.2d 77), Chapin v. Cummings, 191 Ga. 408,412 (12 S.E.2d 312), Ellis v. Hewitt, 15 Ga. App. 693 (84 S.E. 185), and see Swain v. Stewart, 98 Ga. 366,369(3) (25 S.E. 831). The mother of minor children would be entitled to reimbursement for expenditures made by her for their support and maintenance, or to pay directly therefor out of the separate estates of such children, only where it appeared that the mother was in such financial circumstances that she was unable to provide such support and maintenance and that the children's separate estates were sufficient for that purpose.Pettigrew v. Williams, 65 Ga. App. 576, 589 (16 S.E.2d 120).
4. In the present case, compensation is sought by the guardian for an effort by him, as an attorney at law and in apparent good faith, to have the order of the court of ordinary granting encroachment upon the estates of his wards modified, set aside, or vacated, and if he had been successful in showing to the court that the mother was able to support these children, under the foregoing principles of law, further encroachment upon their estates may not have been justified. In denying extra compensation to the guardian for these services as an attorney at law, the ordinary was vested with a discretion under the provisions of Code § 113-2008, that "extra compensation may be allowed by the ordinary." "May" ordinarily denotes discretion when used in a statute. Code, § 102-103. However, it appears from the agreed statement of facts between the guardian and the ordinary in the appeal to the superior court, and by the order of the court of ordinary on which the appeal to the superior court is based, that the ordinary did not exercise the discretion vested in him by law in passing on this matter, but that he predicated his decision therein upon an erroneous concept of the law, to wit: that it was not the legal duty of a mother to support her minor children, the father being dead and they having separate estates inherited from their father, although she may have been amply able to do so.
5. The only assignment of error before this court is that the judgment of the superior court is contrary to law. Whatever the reasons for the decision of the court of ordinary, as shown in division 4 of the opinion, this court is concerned with the judgment of the superior court on which error is assigned. On appeal *Page 818 to the superior court the action was de novo. Code, § 6-501. While the evidence there, as indicated by the stipulation of the guardian and the ordinary, demanded a finding that the ordinary had based his decision upon an erroneous conception of law, rather than in the exercise of his discretion, a finding was not demanded that the action in the court of ordinary seeking to have the encroachment upon the estates of the wards was either necessary on the part of the guardian, or beneficial to the estates of the wards. There is nothing in the record before this court and the assignment of error to indicate that the judge of the superior court acted upon the same erroneous conception of the law as the ordinary did, and it must be assumed that he acted upon the facts presented by the action with a full knowledge of the law and with the discretion vested in him by virtue of the appeal being a de novo investigation, and by consent, he was acting as judge and jury. The superior court was vested with the same discretion in this matter that the court of ordinary had. A finding in favor of the application of the guardian for extra compensation not being demanded, under the law and facts, it cannot be held by this court that the judge of the superior court erred in denying the relief sought by the guardian on the appeal to the superior court.
Judgment affirmed. Parker, J., concurs. Felton, J., concursspecially.