Matthews v. Watkins

Judge ORR

dissenting.

The majority fails, in my opinion, to correctly address a substantial issue raised by the petitioners and ruled upon by the trial court. In the petition it is alleged that the payment of . attorney’s fees by the executor was “wrongful and in violation of the provisions of N.C. Gen. Stat. § 28A-23-4 . . . .” That statute says:

The clerk of superior court, in his discretion, is authorized and empowered to allow counsel fees to an attorney serving as a personal representative, collector or public administrator (in addition to the commissions allowed him as such representative, collector or public administrator) where such attorney in behalf of the estate he represents renders professional services, as an attorney, which are beyond the ordinary routine of administration and of a type which would reasonably justify the retention of legal counsel by any such representative, collector or public administrator not himself licensed to practice law.

N.C.G.S. § 28A-23-4 (1984).

The majority’s interpretation of a stipulation by the.a parties that the amount or reasonableness of the legal fee was not at issue in this proceeding is, in my opinion, incorrect. As noted by the majority, the record also reflects that the parties agreed that the proceeding raised the issue as to whether the executor was entitled to any fee and illegally took it by virtue of the failure to comply with N.C.G.S. § 28A-23-4. Therefore, I view the resolution *656of the issue of compliance with N.C.G.S. § 28A-23-4 as being necessary to decide this case. For the reasons set forth below, I dissent on the grounds that the trial court erred in its ruling on this issue and should be reversed.

I.

An executor is a fiduciary to the beneficiaries of an estate. Fortune v. First Union Nat. Bank, 87 N.C. App. 1, 359 S.E. 2d 801 (1987); N.C.G.S. § 32-2(a) (1984). As such, an executor must act in good faith and may never paramount his own personal interest over the interest of those for whom he has chosen to act. Miller v. McLean, 252 N.C. 171, 113 S.E. 2d 359 (1960); Moore v. Bryson, 11 N.C. App. 260, 181 S.E. 2d 113 (1971).

“Both by law and the words of his oath [an executor] must faithfully execute the trust imposed in him. He must be impartial. He cannot use his office for his personal benefit.” In re Moore, 25 N.C. App. 36, 40, 212 S.E. 2d 184, 187, cert. denied, 287 N.C. 259, 214 S.E. 2d 430 (1975), quoting, In re Will of Covington, 252 N.C. 551, 553, 114 S.E. 2d 261, 263 (1960); N.C.G.S. § 11-11 (1986).

In the present case, petitioners argue respondent engaged in self-dealing and, thus, breached his fiduciary duty as executor by paying estate monies to a law firm of which he was a principal for unnecessary and nonexistent legal services.

It is well established that when an executor also serves as an attorney to an estate, and is paid separately for the two services, a potential risk of self-dealing arises. Annot. “Personal Representative-Compensation,” 65 A.L.R. 2d 809 (1959). The risk inherent in this situation is that the executor will deplete the assets of the estate through payments to himself for unnecessary work or for excessive legal fees. Id. Payments to a law firm, of which an executor is a principal, are viewed the same as payments made directly to the executor acting as the estate’s attorney, because in either situation the executor will receive compensation beyond that received for his duties as executor. Annot. “Personal Representative — Compensation,” 65 A.L.R. 2d 809 § 6 (1959); 33 C.J.S. Executors and Administrators § 223(2) (1942).

In North Carolina the potential for self-dealing, when an executor serves as estate attorney, was recognized in Lightner v. Boone, 221 N.C. 78, 19 S.E. 2d 144 (1942), which says:

*657When a lawyer voluntarily becomes executor he takes the office cum onere, and although he exercises his professional skill in conducting the estate he does not thereby entitle himself to compensation beyond the amount ordinarily allowed to an executor or an administrator. . . .
‘In the absence of statute, the general rule is that where a lawyer becomes executor or administrator, his compensation as such is in full for his services, although he exercises his professional skill therein; and even if he performs duties which he might properly have hired an attorney to perform, he is not entitled to attorneys’ fees.’ . . . The rule is one of public policy, grounded upon the principle that a trustee shall not place himself in a situation where his interests conflict with his duties as fiduciary. ... It has been said that if an executor chooses to exercise his professional skill as a lawyer in the business of the estate, it must be considered a gratuity, and that to allow him to become his own client and charge for professional services would be holding out inducements for professional men to seek such representative places to increase their professional business which would lead to most pernicious results.

221 N.C. at 86, 19 S.E. 2d at 150 (citations omitted).

The North Carolina legislature in 1957 enacted the predecessor to the current N.C.G.S. § 28A-23-4, and altered the law on this question by allowing attorney executors to also pay themselves legal fees under certain circumstances. As noted before, the statute provides that the payment of attorney’s fees must be authorized by the clerk of superior court, sitting as probate judge. Second, before the clerk may order fees paid, he must find: (1) that the executor rendered professional legal services to the estate, (2) that these legal services were beyond ordinary routine estate administration, and (3) that a non-attorney executor would be reasonably justified in retaining an attorney to perform the same services for the estate. If a clerk fails to find all of the requirements stated above, he would not be authorized under N.C.G.S. § 28A-23-4 to allow the payment of attorney’s fees to an executor-attorney.

*658II.

On appeal petitioners argue that the evidence before Gran-ville Superior Court Clerk Mary Ruth Nelms failed to establish the N.C.G.S. § 28A-23-4 factors. Accordingly, petitioners contend that there was insufficient evidence for the trial court’s findings of fact and conclusions of law. These findings and conclusions hold that Clerk Nelms properly authorized the payment of attorney’s fees to respondent’s law firm and that respondent did not breach his fiduciary duty by requesting and paying these fees.

In reviewing this argument, a close examination of the testimony must be considered.

A.

Clerk Nelms oversaw probate of the Davis estate and verified the final estate accounting, which included the payments to respondent’s law firm. She testified that during the estate administration she met periodically with respondent to discuss his actions, and she regularly telephoned respondent and his secretary concerning the estate.

Regarding respondent’s petition for attorney’s fees, Clerk Nelms testified that in November or December of 1985 she and respondent discussed the work he had performed during the estate administration and the commissions to be paid by the estate for his work.

Clerk Nelms described the discussion as follows:

Well, on that particular day the best I can recall I know that Mr. Watkins and Mrs. Bernard came into my office, and Mr. Watkins said that he wanted to talk to me about the attorneys, the commissions, in the estate because it would soon be time to file the Federal tax returns and they needed to be thinking about what they had to do;
And so we discussed the estate just like we had from the very beginning, because even the day we qualified we discussed the, how large the estate was, and what a tremendous amount of work was involved in the administration of it;
And we went over what had, some of the things that had been done and the things that were needed to be done;
*659And so I have made a little list of the different things that I knew that we tried to talk about. Of course, since ’85 it’s hard for me to remember everything that we discussed, Your Honor.
They had to file the income tax returns for the deceased for her last year.
They had to file the Social Security and FICA returns due by the deceased. They had to negotiate, negotiations with the tenants for possession of the house and the restoration;
Collection of appraisal and security of personal property. They had to file the 90-day inventory. Private family auction of personal property.
Negotiations and sale of residence for net price above the appraised value;
Preparation and filing of the Federal tax return. This is the death return.
Preparation and filing of the estate inheritance tax return; the fiduciary tax returns;
Tax waivers. I had to get the tax waivers for the sale of the securities.
Communication with devisees regarding stock sales;
Sales of securities;
Liquidation of Mr. Luther Davis’ trust account.
Negotiations and settlement of disputed certificates of deposit. There was a dispute there on certificates of deposit that they had to be resolved because of what had been the way it was stated on the certificate of deposit and the bank records which caused the tax returns to have, as I understand, to be filed twice;
And then I recall that he told me it was just hundreds and hundreds of hours that had been spent professionally in the estate;
*660And there were other things that had to be done, but I don’t recall any of the rest of them at this time.
It’s in, you know, anything in a regular routine of an estate.

When asked, “Is there any item on that list . . . that can only be rendered by a licensed attorney at law as opposed to a layman? Please answer yes or no,” Clerk Nelms responded,

No. I would like to explain. ... I would say that eighty per cent, approximately, of all the people that I deal with do not know how to deal with an estate.
The ones that tried have a hard time. They go out and they try to get a lot of people to help them with it, and then they have to end up going and getting someone.
In my opinion a layman could not have administered this estate, and he would have been required to have gotten an attorney to help him.

Next, Clerk Nelms was asked,

All right. And is that why you testified in response to Mr. Clark’s question that you were going to let Mr. Watkins draw a double fee, one for being the Executor and one for being the lawyer?

Is that why you said you had agreed to that? To which she answered,

Yes, sir, because I — you see most people have a lawyer anyway, so they’re entitled to a — a layman just would be entitled to five per cent on receipts and disbursements. . . . And then they would have had to have paid an attorney.

Then Clerk Nelms was questioned,

So in this case since Mr. Watkins didn’t have to go out and hire an attorney, you decided to just let him double up because it would be the same difference anyway on somebody else?

In response Clerk Nelms said,

After discussing this with Mr. Watkins at length and going over what had to be done in this estate, all the little *661things that had to be done in the estate that are not even listed, I could not even remember to tell you the things that he told me had to be done in this estate, I thought that he was entitled to what I stated this morning.

Finally, regarding the percentage and amount of commissions awarded to respondent, Clerk Nelms testified,

Well, we talked about it, and Mr. Watkins never asked for a percentage and he never asked for an amount in dollars.
We didn’t never discuss what the amount in dollars would be.
And after we had gone all over all of this and knew what else had to be done in the estate, I told Mr. Watkins that I would allow him five per cent on the, on receipts and disbursements as Executor, and five per cent on receipts and disbursements on attorney’s fees.

Respondent thereupon paid $89,000 to his law firm both for his commission as executor and for his and his law firm’s commissions as estate attorneys.

Clerk Nelms, when questioned about legal services rendered to the Davis estate by respondent’s law firm, Watkins, Finch & Hopper, said that she knew the law firm had prepared a deed for the estate. Clerk Nelms further testified that although she didn’t have personal knowledge of any other legal service provided by the firm to the estate, “I do know that the attorneys, Mr. Watkins’ partners, they knew what was going on at all times in the estate; [a]nd I feel that they rendered a valuable service to Mr. Watkins and to the heirs and to everyone concerned.”

Clerk Nelms acknowledged that neither of respondent’s petitions seeking commissions specifically requested payment for legal services. She also admitted she authorized respondent to pay his commissions before he had filed a final accounting of estate finances, and before she had fixed a dollar amount for the attorney’s fees.

Finally, Clerk Nelms said she had never entered into the estate file written findings of fact explaining her decision to award respondent a commission for legal services. Nor had she *662ever written into the estate file either the dollar amount or the percentage allowance she had fixed for attorney’s fees.

B.

At the hearing, respondent also testified as to the basis for his petition seeking attorney’s fees. In answer to the question, “[W]hat legal services have you rendered to the estate of Annie Mae S. Davis as an attorney . . . [w]hich are beyond the ordinary routine of administering most estates?”, respondent said:

To begin with after this petition was filed I asked my law partner, Mr. Hopper, to take that, the two big files that you see down there that are part of the papers that resulting from the administration of the, this estate, and to go through them one by one and determine in his mind conservatively, extremely conservatively, as to how many hours would have to be spent performing that service as an attorney.
And he estimated from going through the papers that we performed six hundred and eighty-three hours of legal service to this estate.

When asked to describe these legal services, respondent answered as follows:

All right. Mr. Parker, the routine services of an administrator in Granville County in the thirty-five years that I’ve been practicing estate law; . . .
From virtually what they do in the beginning, a routine executor, I mean administrator or executor, comes into your office and says, we have my father, my mother, my relative died, I want you to tell me what I’ve got to do;
And I immediately explain how you administer an estate. One out of a hundred will not even know that you’ve got to carry the Will to the Courthouse to have it recorded.
They do not even know that you have to fill out an application for Letters Testamentary or Letters of Administration and qualify before the Clerk;
*663And at that time you’ve go to know the assets of the estate, you have to advise them on all of that.
Now, because I had that knowledge over and above that of an ordinary person who would have come in to handle this estate does not mean that I don’t get compensated for it.
And that’s part of an attorney’s duty; and that’s what we had to do in this that’s not normal routine duties of an ad-. ministrator.
And we did that and got the application ready and went up to qualify.
Now, to say all of that was duties of an administrator or an executor is absolutely routine duties is absolutely erroneous.
I’m telling you what I performed. I performed those services.

When asked, “Weren’t all of those things part of the ordinary routine administration of an estate?”, respondent explained,

No, sir. Not by the administrator, not by the executor, it’s not routine things performed by the ninety-nine per cent of the executors and administrators of an estate.
You asked me what legal duties I performed.
I performed all legal duties that were not routine duties of an executor or administrator; and I’m enumerating what are not routine duties of an administrator or an executor.

Responding to the question, “What did you do in those six hundred and eighty-three hours’ worth of services which were beyond the ordinary routine of estate administration and which involved your services as an attorney?”, respondent testified:

All right, sir. Now, Mr. Parker, you know and I know and everybody else with any reasonable amount of intelli-*664gencé knows that I cannot sit here on this witness stand without any reference whatsoever and tell you everything I did as an attorney.
I can do it better by comparison than anything else.
The only — when you do not intend to charge by the hour but you intend to charge for the responsibility that you’re subjected to, and some of that responsibility is being paid for just where I’m sitting today.
Every time I serve as an attorney for an estate I’m subjected to the possibility that someone will not think that I, that I did as much work, who do not know what I do, and will want to question me and bring me before the Court and allege embarrassing things about me, that’s part of what I get paid for as an attorney;
And I think you have to be compensated well for such things to occur to you;
And that’s part of what — and I haven’t even included that in the six hundred and eighty-three hours of legal services, and that’s as much a part of a legal service as anything else you do.

Respondent further told the court at the hearing that the above testimony, concerning his petition for attorney’s fees, was evidence sufficient to satisfy the requirements of N.C.G.S. § 28A-23-4.

C.

Respondent’s two law partners, William Hopper and Dennis Finch, also discussed the legal services they each had provided to the estate.

Mr. Hopper said he had been consulted by respondent on the following issues of estate administration: (1) the eviction of a tenant; (2) the transfer of stock; (3) the release of trust funds; (4) the appraisal, sale and distribution of personalty; and (5) the sale of real property. Mr. Hopper testified that he had kept no record of the time involved in these consultations, and that he had no opinion as to the value of his services.

*665In addition, Mr. Finch said he had been consulted by respondent concerning the estate once on the issue of survivorship rights to an estate certificate of deposit and several times in general conversations. Mr. Finch estimated that he had spent less than eight hours working on the survivorship rights issue, and he further said he was unable to recall the amount of time he had spent with the other consultations.

D.

Based on the testimony discussed above, Judge Hobgood made findings of fact, including the following:

In October or November of 1985, Mary Ruth C. Nelms had a conference in her office with William T. Watkins concerning commissions and fees. William T. Watkins told Mrs. Nelms that he wanted to talk about commissions because it would soon be time to file Federal estate tax returns and State inheritance tax returns. Mr. Watkins never suggested or asked for any specific amount in terms of percentage or dollars. Mrs. Nelms knew at that time the various work, time and attention this estate had required of William T. Watkins and the law firm of Watkins, Finch and Hopper. Mrs. Nelms testified at this hearing that William T. Watkins had worked on this estate hundreds and hundreds of hours. Mrs. Nelms told William T. Watkins at that conference in October or November of 1985, that she would allow him a five per cent commission as Executor and that she would allow a five per cent commission as attorney fees.
That since October or November, 1985, it has been the intent of Mary Ruth C. Nelms, Granville County Clerk of Superior Court, that she would allow total commissions to William T. Watkins and the law firm of Watkins, Finch and Hopper in the amount of 10 per cent of receipts and expenditures, which constituted five per cent of receipts and expenditures as Executor’s commission and five per cent of receipts and expenditures for professional services as an attorney beyond the ordinary routine of estate administration. Mrs. Nelms told William T. Watkins of this intent in October or November of 1985.

Judge Hobgood then concluded as a matter of law:

*6661. Mary Ruth C. Nelms, Granville County Clerk of Superior Court, by her verbal instructions to William T. Watkins in October or November of 1985, by her written orders of December 11, 1985, and September 16, 1986, and by her approval of the annual account which was filed June 17, 1987, has approved a total payment of commissions to William T. Watkins and the law firm of Watkins, Finch and Hopper from this estate in the amount of $89,000.00 in accordance with North Carolina General Statutes Section 28A-23-3 and Section 28A-23-4.
2. The petitioners, the residuary heirs under the will, having failed to show that the Granville County Clerk of Superior Court did not approve the payment of commissions to William T. Watkins and the law firm of Watkins, Finch and Hopper cannot prevail on the contention that said total payments were wrongful and in violation of North Carolina General Statutes Section 28A-23-4.
3. That there is evidence to support the payment of commissions pursuant to North Carolina General Statutes Section 28A-23-4, in that William T. Watkins and the law firm of Watkins, Finch and Hopper rendered professional services as attorneys to the estate which were beyond the ordinary routine of estate administration.
5. That the actions of William T. Watkins as Executor do not constitute default or misconduct in an individual capacity or in a fiduciary capacity.

III.

In examining the case before us, the fundamental distinction between a non-attorney executor and an attorney executor is critical. Clearly, a non-attorney executor, subject to normal fiduciary responsibilities, can hire an attorney to handle all or part of the duties associated with the routine administration of an estate and pay legal fees so incurred while still receiving compensation for his duties as executor.

*667An attorney executor may draw his full commission like any other non-attorney executor, for serving as executor, but in order to receive legal fees in addition to that, he must meet the test set forth in N.C.G.S. § 28A-23-4.

To meet the first part of the test, then, an attorney executor must specifically show to the clerk that the services rendered to the estate as an attorney were beyond the ordinary routine of administration. Secondly, the attorney executor must specifically show that a non-attorney executor would have been reasonably justified in retaining counsel to handle the specific work.

Only when this two-pronged statutory test has been met, may the clerk of court approve the payment of legal fees to an attorney executor. We must now consider the evidence in the record as previously set out to see if this test was met.

Clerk Nelms’ testimony failed to identify what specific types of legal services were provided to the estate; why these services were beyond ordinary routine estate administration; who performed these services; and why the services required the assistance of a licensed attorney.

In addition, Clerk Nelms’ testimony was unsubstantiated by any written documentation from or by respondent, a fundamental requirement when requesting legal fees be approved by a court official. The Davis estate file maintained by Clerk Nelms contained no information specifying what legal services were performed on behalf of the estate that would justify a finding of the N.C.G.S. § 28A-23-4 factors and entitle respondent and his law firm to attorney’s fees.

Furthermore, the testimony of respondent was inadequate to meet the test set out in N.C.G.S. § 28A-23-4. Respondent’s testimony, like that of Clerk Nelms, was general in scope, lacking the specificity necéssary to determine the exact legal services he had performed and failing to explain why the legal services exceeded routine estate administration. Neither did respondent produce records, documenting the nature of the legal services rendered and the time required to perform those services to Clerk Nelms with his petition.

It would appear from respondent’s testimony that in his opinion the estate was complex and not one that could be handled by *668a non-lawyer, thus justifying the use of legal services. Such may well be the case if the executor in the case sub judice had been a non-attorney.

However, as noted previously, the standard is different, and appropriately more stringent, for an attorney who also is serving as executor and being compensated for his duties in that position. As respondent’s testimony shows, the evidence he presented to Clerk Nelms and to Judge Hobgood lacked the specificity necessary to establish a basis for his petition seeking attorney’s fees. Likewise, the testimony of Mr. Hopper and Mr. Finch also was insufficient to support respondent’s petition for attorney’s fees. While their combined testimony indicated they had each performed minor legal services for the estate, this testimony failed to address the standards set out above and for entitlement to legal fees.

IV.

Therefore, I conclude that based on the evidence produced at the hearing below the clerk was not authorized to approve the payment of counsel fees to respondent’s law firm, since the requirements of N.C.G.S. § 28A-23-4 were not met. Therefore, respondent’s payment of fees to his law firm was unauthorized. To that end, in my opinion, the trial court committed reversible error and this matter should be remanded.