
    Wytheville.
    Turnbull and Others v. Buford, Administrator and Others.
    June 8, 1916.
    Absent, Cardwell, J.
    1. Fiduciaries&emdash;Settled Accounts&emdash;Presumption&emdash;When and How Opened &emdash;Case in Judgment.-&emdash;When fiduciaries have settled their accounts in a chancery suit pending for that purpose, and such settlements have been duly confirmed, from time to time, by decree of court, they are presumed to be correct and cannot be opened, except upon a proper proceeding filed in due time, in which the errors complained of must be specifically pointed out, and the parties affected thereby given an opportunity to be heard. In the case in judgment these principles have been ignored, and in addition thereto, the parties, including the judges who have successively sat in the cause, having the most intimate knowledge of all the transactions, have passed away, and it is now too late to overhaul their settlements, -which have been ratified and confirmed by the court, especially upon the bare assumption of errors that do not appear.
    2. Counsed Fees&emdash;Allowance&emdash;Case in Judgment.&emdash;Upon the proofs already in the record and upon such additional evidence as may be adduced by the parties, a reasonable fee should be ascertained and allowed to each of the appellants for their services as attorneys in this case. Great injustice has been done them by the allowance of fees heretofore made them.
    3. Master’s Report&emdash;Notice&emdash;Exception&emdash;Case in Judgment.&emdash;It was error for the master, without authority from the decree of reference, and without notice to the parties to charge a commissioner of the court with a sum of money which he had by a former report charged to an administrator, and a large part of which the administrator had paid. The exception to the master’s report on this ground should have been sustained, and his report recommitted with instructions to reconsider his action in the light of such evidence as might be adduced by either party, after notice to the commissioners.
    4. Costs&emdash;Case in Judgment.-&emdash;Under the circumstances of the case in judgment, it would be inequitable to impose upon the appellants, who are fiduciaries, any part of the costs of these proceedings which have been incurred through no fault of theirs.
    Appeal from a decree of the Circuit Court of Brunswick county. From a decree holding commissioners of the court hable for large sums of money, the commissioners appeal.
    
      Reversed.
    
    The opinion, states the case.
    
      N. Turnbull and Jeffries & Jeffries, for the appellants.
    
      Buford & Peterson, for the appellees.
   Harrison, J.,

delivered the opinion of the court.

The bill in this cause was filed in 1874 by the executors of W. W. Talley, deceased, asking the court to direct them in the administration of their testator’s estate, and in the investment of the funds in their hands as executors, in which, by the terms of the testator’s will, a life estate had been created with remainder to infant children. The court directed the investment and reinvestment of the funds in question, under its supervision and decrees, through .its own commissioners appointed for the purpose, who would regularly report their transactions in this behalf and have the same ratified and confirmed by the court. This method of handling the funds has continued until the present time. In 1893 Robert Turnbull, one of the appellants, succeeded to this office of commissioner and continued to act as such until 1906. When he ceased to be commissioner he had a balance of uninvested funds in Ms. hands amounting to $1,596.22. Subsequently the appellant, Edward R. Turnbull, as commissioner, appointed for the purpose, collected and reinvested under the orders and decrees of the court certain of these funds. At the time of his last investment it appears that he had a balance of principal in Ms hands uninvested amounting to $2,447.50.

During the pendency of this suit, now forty-two years, several personal representatives have succeeded each other in the management of the estate of W. W. Talley, deceased, the last appointment being the appellee, E. P. Buford, in April, 1912, who immediately upon Ms qualification as such admimstrator, and- without any petition for rehearing or other pleading pointing out errors, procured a decree referring the cause to a master commissioner, with authority to call to his aid a certified public accountant, and with directions to ascertain and report to the court certain accounts which involved opeMng up and restating all of the innumerable accounts and settlements of the various executors, administrators and commissioners which had been made and confirmed in the cause since the suit was brought in 1874. By thus disregarding and ignoring these reports and decrees confirming the same which had been entered by the judges who had previously sat for so many years in the cause, this sweeping and expensive investigation resulted in fixing upon the appellants a liability for interest claimed to be due from them on certain funds passing through their hands as commissioners wMch had not been reinvested witMn thirty days after they were received. It is from thife and subsequent decrees. charging appellants with interest on all moneys that came into their hands and remained uninvested longer than thirty days, regardless of former decrees ratifying and confirming tfieir acts witfi respect to sncfi matters, and refusing to allow them reasonable fees for tfieir professional services as attorneys in tfie cause, tfiat tfie present appeal fias been taken.

It is apparant tfiat the decrees complained of, which directed the master commissioner, witfi the aid of a certified public accountant, to rip up, reopen and restate all of tfie settlements and reports made by tfie appellants as commissioners, and confirmed by tfie court,' was erroneous as well as tfie subsequent decrees complained of carrying into effect tfie result of tfie master’s investigations under tfie first-mentioned decree. This was not authorized by any rule of law or practice.

“If it were permitted, the essential principle which imputes verity to public records would be overturned, and no man’s rights, depending upon tfie sacredness of tfie records, would be secure and incalculable mischief would be the result.” Nelson’s Admr. v. Knowslar’s Ex’ors. 79 Va. 468.

When fiduciaries have settled tfieir accounts in a chancery suit pending for tfiat purpose, and such settlements have been duly confirmed,, from time to time,- by decree of court, they are presumed to be correct and cannot be opened except upon a proper proceeding filed in due time, in which tfie errors complained of must be specifically pointed out, and tfie parties affected thereby given an opportunity to be heard. Corbin v. Mills, 19 Gratt. (60 Va.) 438.

As already seen, there was no petition for rehearing in tfie case before us, and iio errors pointed out in any one of tfie settlements sought to be reopened. Tfie parties, including judges who have successively sat in tfie cause, having tfie most intimate knowledge of all these transactions, have passed away, and it is now too late to overhaul their settlements which have been ratified and confirmed by the court, especially upon the bare assumption of errors that do not appear.

The record shows that great difficulty was encountered in finding investments promptly for these funds, arising in large measure from the fact that the court would not permit a loan to be made except upon real estate assessed for taxation at double the amount of the loan and from which the timber had not been removed. In view of the very low assessment of the lands, these conditions made it difficult to find desirable borrowers who could comply with the court’s terms, frequently necessitating the holding of collections for reinvestment longer than would otherwise have been necessary. The record further shows that during all the years of their connection with this case these appellants were only credited in their settlements with $29.00 and $17.00 as commissions upon the collection and reinvestment of these funds under the supervision and decrees of the court. It may well be that the learned judges before whom their accounts were settled, took the view that under such circumstances it would be inequitable to change these appellants with interest on the funds for investment which were held, without fault on their part, beyond a period of thirty days. There is no evidence that the appellants ever actually derived any benefit from the funds which were from time to time delayed in their hands awaiting investment.

The contention of the appellants that the court erred in refusing to allow them reasonable fees for their services as attorneys in this cause is, we think, well taken. The record shows that under an understanding between the appellant, Robert Turnbull, and one of the administrators of this estate, he was paid as attorney $20.00 per annum during the long period that he was connected with the case. Appellant says that this small annual stipend was his agreed compensation for once a year looking over the administrator’s papers with him and putting them in shape for his annual settlement before a- commissioner. On the other hand the administrator insists that it was intended to cover his entire compensation for the' services rendered in the cause on all accounts and for all the parties thereto. The court increased this allowance, in the ease of the appellant E. R. Turnbull, to $50.00 per annum.

The appellants were, succeeding each other, the sole counsel connected with this ease for more than twenty years, rendering in that time all of the varied professional services that would necessarily be imposed upon any lawyer in conducting a suit of this character, involving a large estate. No one can examine this voluminous record, with its countless reports, statements, settlements and decrees, without being impressed with the great volume of professional services necessarily rendered therein by counsel, nor without being satisfied that great injustice has been done appellants by the allowance of fees that has been made to them. We are of opinion that, based upon the proof already in the record and upon any additional evidence that may be adduced on the subject by the parties, a reasonable fee should be ascertained and allowed to each of the appellants for their services as attorneys in this case.

It further appears that, in a report filed December 3, 1912, by the master, acting under an order of reference, which was subsequently confirmed, Ashby Manson, the then administrator of the estate, was charged with a balance due from him of $897.01. Ashby Manson appears to have admitted his liability for this sum by subsequently paying $400 thereof to E. P. Buford, the present administrator. Acting under a later order of reference the same master without authority from the decree to do so, and without any notice to the' appellants, changed his former finding and relieved Ashby Manson of the $897.01, theretofore charged to him and charged the same to the appellants as commissioners and'attorneys. This report was duly excepted to,' appellants insisting that they could show that this sum ■ was properly charged to Ashby Manson and that the action of the master was arbitrary and without'notice to them, and that it was error in the lower court to confirm'this finding without giving them an opportunity to be heard. We are of opinion that the circuit court should have recommitted this report to the master with directions to him to reconsider the action complained of in the light of such evidence as might be adduced by either party after due notice to the appellants.

The appellees insist under assignment of cross-errors that the lower court erred in allowing E. R. Turnbull $50.00 per annum for his services as attorney, and in not requiring the costs of • this litigation to be paid by the appellants. Both of these propositions are wholly without merit. So far as the small attorney’s fee allowed E. R. Turnbull is concerned, we’ have already pointed out that it was totally inadequate compensation for the services rendered and that a reasonable fee should be allowed him.

So far as the demand for costs is concerned, the record shows that this litigation, attacking all the settlements of this estate, made and confirmed through the last forty years, thereby entailing heavy costs, especially in paying the public accountant, was inaugurated by the appellees and has been very barren of results. The appellants are in no way responsible for it; on the contrary, they have protested against such proceedings. The doctrine, relied on by appellees, that “where a cestui que trust is driven to litigation with his trustee, to establish the amount of the trust fund, where their difference is not an honest difference of opinion to be settled by judicial inquiry, and he recovers more than the trustee admitted to be due, the trustee may pay the costs,” has no application to the facts of this case. But for the erroneous charge of additional interest, nothing would have been found due from appellants beyond what they admitted and were ready to pay. So far as the record shows the funds involved have been faithfully administered by the various officials who have handled them throughout the forty or more years they have been in court. Under such circumstances it would be most inequitable to impose upon the appellants any part of the costs of these proceedings which have been incurred through no fault of theirs.

In conclusion, we are of opinion that in ascertaining the balance, if any, due from the appellants in this case, Robert Turnbull should be charged with the amount shown to be in his hands when he ceased to act as commissioner, with interest thereon from that date, subject, however, to credit for all sums that he has paid on such balance since that date and further subject to credit for the amount of such reasonable fees as may be ascertained to be due him for his services as attorney in this ease; and that the appellant, E. R. Turnbull, should be charged with the balance shown to be in his hands on December 2, 1910, the date of the last investment made by him, with interest thereon from that date, subject, however, to credit for all sums that he has paid on such balance since that date, and further subject to credit for the amount of such reasonable fees as may be ascertained to be due him for his services as attorney in this ease.

It follows from what has been said that the decrees complained of must be reversed and set aside, in so far . as they affect the appellants, and the cause remanded for further proceedings not in conflict with the views expressed in this opinion.

Reversed.  