
    L. S. OVERMAN, Administrator, v. MATTIE LANIER et al.
    (Filed 23 December, 1911.)
    1. Appeal and Error — Executors and Administrators — Account and Settlement — Reference—Findings—Attorneys’ Fees.
    When fees for attorneys employed by an administrator are found as a fact by a referee to have been unnecessary, and this finding has been approved by the judge of the lower court, the ruling of that court will be approved on appeal, when there is evidence to support it.
    2. Same — Employees—Commissions.
    Upon petition of an administrator for a final account and settlement, an answer was filed by the heirs at law and distributees, and the matter referred. The referee found that the clerk’s allowance to the administrator was a commission of $10,000, expenditures for clerks’ and attorneys’ fees $8,000, or over 16 per cent of the total receipts: Held, (1) five per cent is the limit allowed by law, within which the compensation should be proportioned according to the services rendered and in consideration of all the facts and circumstances; (2) the e® parte allowance'by the clerk is not conclusive; (3) in this case an allowance to the administrator of 4 per cent upon the receipts and 2% percent upon the disbursements, approved by the judge, will not be disturbed on appeal.
    3. Executors and Administrators — Final Account and Settlement— . Personal Liability — Wagering Contracts — Burden of Proof — Interpretation of Statutes.
    A petition by an administrator,for a final account and settlement was resisted by the heirs at law and distributees, and the matter referred. In their answer, the defendants alleged that certain notes, valid on their face, were given for a gambling contract in cotton futures, and should not have been paid: Held, the provisions of Revisal, sec. 1691, do not apply so as to place the burden of proof on the administrator to show that the notes were given for a valid contract requiring the actual delivery of the .cotton; and an exception by the defendant to the report of the referee in holding the payment of the notes a valid disbursement will not be sustained in the absence of any findings as to the nature of the contract for which they were given.
    4. Executors and Administrators — Insurance Policy as Collateral— Payment of Premiums — Loss to Estate — Personal Charge — Rule of Prudent Man.
    A finding by a referee, confirmed by the judge, that an administrator paid, in good faith, under the rule of the prudent man, premiums on a life insurance policy held as collateral to a note given the deceased, and which ultimately resulted in loss to the estate, will, upon supporting evidence, be upheld on appeal, and the administrator allowed credits for the amounts he has thus paid out.
    5. Executors and Administrators — Management of Estate — Personal Liability — Appeal and Error.
    Upon the findings of fact by the referee, confirmed by the judge, in this case, as to the administrator’s management and sale of a distillery interest and liquor belonging to the estate, the defendant’s exceptions of law cannot be sustained.
    6. Executors and Administrators — Clerk Hire — Commissions.
    Ordinarily administrators should not be allowed for the expenses of a clerk and bookkeeper, so as to increase the amount of the commissions beyond that allowed by the statute.
    7. Executors and Administrators — Commissions—Counsel's Fees.
    While allowances to administrators for counsel fees should be carefully scrutinized by the court, the report of the referee, confirmed by the court, in this case, allowing fees of $1,000 as not being excessive under the conditions disclosed, is sustained.
    8. Executors and Administrators — Final Account — Personal Liability — Answer—Nature of Action.
    When in answer to a petition by an administrator for an account and settlement, the heirs and distributees seek to charge the administrator personally with debts he has charged against the estate, the action becomes one personally against the administrator, and as to such things he is not entitled to an attorney’s fee for professional legal services rendered therein.
    9. Same — Partial Recovery — Costs — Statement—Reformation—Interest.
    In this action, in the nature of one to personally charge the administrator with certain debts of the estate, there was final recovery of about $6,000 in excess of the sum the administrator admitted to be due; and all costs should be taxed against him but for the fact that the heirs and distributees unsuccessfully sought to recover further and larger sums; it is adjudged that the cost of the litigation be divided between the parties and that the account of the administrator be reformed, and that Interest be charged on the correct amount due by him from the date of his filing his report.
    
      10. Appeal and Error — Unnecessary Matter — Stenographer’s Notes —Cost,
    Upon objection duly entered to tile sending up on appeal of the stenographer’s .notes with questions and answers, instead of in a narrative form, the unnecessary additional pages thus made will be taxed against the party at whose instance it is done.
    Appeal by both parties from Lyon, J., at May Term, 1911, of Bowan.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justiee Clark.
    
    
      T. F. Klwbtz, F. C. Gregory, T. J. J eróme, F. J. Justice, and, L. H. Clement and C. W. TiTlett for-plaintiff.
    
    
      Walser & Walser, G. W. Gcvrland, Burwell $ Cansler, and Manly, Henduren & Womble for defendants.
    
   OlaeK, C. J.

J. B. Lanier of Salisbury died intestate in 1894 and tbe plaintiff was appointed administrator. In September, 1904, tbe plaintiff filed bis petition for a final account and settlement, and tbe beirs at law and distributees filed an answer to tbe petition. Tbe matter was referred to a referee, to whose report both parties filed exceptions. Tbe judge overruled all exceptions, to wbicb action both sides filed exceptions aüd appealed.

PLAINTIFF'S APPEAL.

Tbe plaintiff abandons all exceptions in bis appeal except:

1. Tbe disallowance of $250 attorney’s fees to Watson & Bux-ton. Tbe referee found as a matter of fact tbat it was unnecessary for tbe plaintiff to consult them in bebalf of tbe estate, and tbis finding of fact bas been approved by tbe judge. Tbe ruling of law tbereon, tbat this fee should not be allowed to tbe administrator, must be approved.

2. Tbe referee reports tbat tbe clerk’s allowance of commissions to tbe administrator of 5 per cent amounted approximately to $10,000; tbat tbe expenditures for clerical services, attorneys’ fees, and expenses amount to over $8,000, making a total of about $18,000, or over 16 per cent of tbe total receipts, tbe total collections being about $110,000; tbat tbe largest part of tbe estate was settled in two years, but tbe entire administration lasted about nine years. Tbe referee going over tbe record of tbe administration in full, found tbat 4 per cent upon tbe receipts and 2% per cent upon tbe disbursements would be a fair compensation to tbe administrator for bis services. Five per cent is tbe limit allowed by law, but witbin that limit tbe compensation should be proportioned according to tbe services rendered and in consideration of all tbe facts and circumstances. Tbe ex parte allowance of commissions by tbe clerk is not conclusive (Walton v. Avery, 22 N. C., 404), and in Green v. Barbee; 84 N. C., 72, tbe Court said: “Tbe compensation allowed tbe personal representative for bis services witbin tbe limit of 5 per cent on botb sides rests in tbe sound discretion of tbe tribunal called to pass upon tbe question.” Tbe judge below, in reviewing tbe entire dealings and acts touching tbe administration of tbe estate, concurred in tbe allowance made by tbe referee, and we see no reason to disturb it.

3. Tbe other exception is tbat tbe referee held tbat tbe administrator should not be allowed more than $1,000 for bis attorney’s fees in representing him in this present matter. Tbe defendants except to tbe allowance of any attorneys’ fees at all to tbe administrator for defending himself in this action, and tbe whole matter will be considered on tbe defendant’s appeal.

In tbe plaintiff’s appeal the judgment should be

Affirmed.

DEFENDANTS’ APPEAL.

Passing by the exceptions to tbe findings of fact, as to all which there was evidence and tbe rulings upon which by tbe judge are conclusive upon us, tbe first exception to be considered is to tbe allowance of $30,000 paid upon tbe Rountree notes which tbe defendants contended were given for losses on “futures” in tbe New York market and which was therefore a gambling debt and invalid under Revisal, 1691. Tbe referee found as a fact: “Tbe record does not disclose sufficient evidence either to show affirmatively tbat this was a gambling contract or tbat it was a legitimate debt made with tbe intention that the cotton should be delivered, and the referee finds that tbe administrator bad no such knowledge of tbe nature of tbe transaction which resulted in tbe Rountree debts, nor could have procured the same upon reasonable inquiry, as would have enabled him successfully to resist suits brought thereon, on the ground that they were incurred under gambling contracts.” We cannot .agree with the defendants that because in their answer in this proceeding they alleged that these were gambling debts, this cast the burden of proof upon the plaintiff under Revisal, 1691. That provision applies where a party sues upon the contract and the debtor denies it and sets up the defense. But here the defendants are alleging that the payment by the plaintiff of his intestate’s notes, valid on their face, is invalid because the contract was founded upon illegal consideration, and the burden was upon them to prove it.

The matter has been very fully and ably argued by counsel on both sides. But in view of the findings of fact by the referee, that it is not shown that this debt was for a gambling contract, and the approval of that finding by the court, we cannot sustain the exception.

Nor can we sustain the exception that the referee paid out insurance premiums to keep up a policy which was held as collateral to a note due by Payne, who was a man in advanced years and in somewhat feeble health. It is true that this turned out a loss to the estate. But it is found that the administrator acted in good faith, and it cannot be held that a reasonably .prudent man would have acted differently under the circumstances. It has been forcibly said by some one that “Our hind-sights are better than our foresights.”

Nor do the facts in evidence justify the contention of the defendants, that the administrator should forfeit all commissions. The referee has not found evidence of negligence and unlawful mismanagement to justify it.

The findings of fact in regard to the management and sale of the distillery interest and liquor belonging to the estate preclude our sustaining the exceptions of law in regard to the administrator’s action in that respect.

While, ordinarily, administrators should not be allowed for clerk hire and the expenses of a bookkeeper, this being usually a part of the ordinary services for which he receives a commission, in this case the evidence discloses that it was necessary to employ such clerical assistance, and the allowance thereof was doubtless considered by the court below in fixing the commissions below the limit allowed by law.

The defendants also except because at the time of the death of Lanier there was in the bank the sum of nearly $5,000, and the defendants insist that commissions should not be allowed on this item, or at least not as high, as 4 per cent. But doubtless this item was considered with others in fixing the amount of the commissions allowed the administrator.

The administrator was allowed attorneys’ fees in the course of the administration of the estate, i. e., prior to the present suit, to the amount of $2,651.39, of which approximately $1,000 was paid to his resident counsel. The defendants except to this allowance, especially the latter, because the plaintiff was himself an excellent lawyer, which was doubtless one cause of his selection as administrator. While allowances for counsel fees should be carefully scrutinized, the court below and the referee have found that these amounts were not excessive and in reviewing the history of the management of this estate and the amount of litigation we cannot overrule the conclusion of the judge below.

The defendants further except because the plaintiff has been allowed $1,000 counsel fees in this litigation. His final report disclosed that after handling the estate at a cost of $18,000, out of which $10,000 went to him as commissions, $2,631 to lawyers for fees in regard to the litigation of the estate, and between $5,000 and $6,000 for clerk hire and incidental expenses, the plaintiff held in his hands for the heirs and distributees only $685.34 out of an estate whose total assets amounted to $110,000. To this report the defendants excepted, and by the judgment of the court below the balance due them has been increased to $5,346.33. This litigation has been not in the interest of the estate nor a mere formal proceeding to close it up, but in truth and in fact it has been a contest between the heirs at law on the one side and the administrator whom they sought to make individually liable on the other. The result shows that while the administrator has not been fixed with large sums which the defendants allege he should be made liable for, the contest has been to protect himself individually from such liability, and tbe services of tbe attorneys were for bis personal benefit in that regard. Besides, it bas been adjudged that be is indebted to tbe estate nearly $6,000 more tban be returned in bis report as due tbe beirs at law and tbe distributees. Tbe counsel fees for opposing tbe recovery of sucb judgment should be charged against tbe administrator personally, as is tbe judgment itself.

In Stonestreet v. Frost, 123 N. C., 644, it is said: “We think that tbe administrator should not have been allowed tbe $100 fee which be paid tbe attorney out of tbe assets of tbe estate, for tbe reason that tbe service was rendered by tbe attorney for tbe attempted prevention of tbe recovery against tbe administrator by tbe distributees of that which belonged to them.” And in Allen v. Royster, 107 N. C., 383, it is also said: “xYn administrator should not be allowed credit for fees paid counsel in defense of an action to compel him to a final account with tbe next of kin.” Tbe true rule, that tbe fiduciary “is entitled to be credited for a reasonable sum paid to an accountant or attorney for stating tbe account. We think, too, if there is any difficulty in doing it, be is entitled to tbe advice of counsel and to credit for any reasonable fee paid for that purpose. But for any payment beyond this it must be an exceptional case to entitle him to credit.” Whitford v. Foy, 65 N. C., 276.

For tbe above'reasons we also think that tbe cost of this litigation below should be divided between tbe parties. Tbe final result is recovery by tbe defendants of about $6,000 in excess of tbe amount which tbe administrator admitted to be due them in bis final account. But for tbe fact that they sought to charge him with further sums in which they are not successful, tbe entire cost of tbe litigation should have fallen upon tbe plaintiff. Notwithstanding its form, this is really an action by tbe defendants to charge tbe plaintiff individually with sums which be bad received for tbe estate and in which action tbe defendants have recovered judgment against him. Tbe account should also be reformed to charge tbe administrator with interest, from tbe date of filing tbe report, on so much of tbe amount which is now adjudged to have been due by him at that date, on which interest is not calculated in tbe judgment below.

The defendants in tbe judgment below, in accordance with Rule 22 of this Court, objected at the time of making up tbe ease to tbe sending up of tbe stenographer’s notes in form of question and answer instead of in narrative form, as we bave often stated should be done. Cressler v. Asheville, 138 N. C., 482. These notes, however, were sent up on demand of the plaintiff, together with other unnecessary parts of the record. The defendants contend that such unnecessary additions amount to 175 printed pages. Upon a careful estimate we think that at least 125 printed pages of the matter sent up over the objection of the defendants, and upon the demand of the plaintiff, were unnecessary and the cost of copying and printing the same should be taxed against the plaintiff. Land Co. v. Jennett, 128 N. C., 4. This is in addition to the allowance of 60 pages to be taxed in favor of the defendant under Rule 22.

In defendant’s appeal there is

Error.  