{
  "id": 8553158,
  "name": "ROY L. TRIPP, JR., and wife, SANDRA V. TRIPP, PATRICIA TRIPP LANCASTER and husband, D. L. LANCASTER, ROBERT E. TRIPP and wife, SHERI S. TRIPP; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., as Executors of the Will of Roy L. Tripp; DAVID E. OGLESBY, JR., D. C. TRIPP, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., B. B. SUGG, JR., Trustees U/A and Supplemental Agreement with Roy L. Tripp and wife, Elsie P. Tripp, dated December 31, 1950; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, ROSALIE T. SMITH, D. C. TRIPP, FRANK T. WHITEHURST, JR., T. G. JOHNSTON, Trustees under the Will of Roy L. Tripp; and NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), Trustee U/A Elsie P. Tripp, dated September 17, 1966, Petitioners v. D. C. TRIPP, T. G. JOHNSTON, and FRANK T. WHITEHURST, JR., Individually Respondents",
  "name_abbreviation": "Tripp v. Tripp",
  "decision_date": "1972-12-20",
  "docket_number": "No. 723SC573",
  "first_page": "64",
  "last_page": "67",
  "citations": [
    {
      "type": "official",
      "cite": "17 N.C. App. 64"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "189 S.E. 2d 547",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "15 N.C. App. 229",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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    {
      "cite": "131 S.E. 2d 456",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 520",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561317
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0520-01"
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    },
    {
      "cite": "95 N.C. 265",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11273814
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/95/0265-01"
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    {
      "cite": "19 S.E. 2d 144",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "221 N.C. 78",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8626184
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/221/0078-01"
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  ],
  "analysis": {
    "cardinality": 428,
    "char_count": 8840,
    "ocr_confidence": 0.578,
    "pagerank": {
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    "sha256": "124a9cbda58513738a00243415f7058ea8fd4e33cbfb3fdc2624d2fc30308978",
    "simhash": "1:0658f4a6c8028458",
    "word_count": 1488
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  "last_updated": "2023-07-14T17:26:57.402584+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Mallard and Judge Britt concur."
    ],
    "parties": [
      "ROY L. TRIPP, JR., and wife, SANDRA V. TRIPP, PATRICIA TRIPP LANCASTER and husband, D. L. LANCASTER, ROBERT E. TRIPP and wife, SHERI S. TRIPP; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., as Executors of the Will of Roy L. Tripp; DAVID E. OGLESBY, JR., D. C. TRIPP, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., B. B. SUGG, JR., Trustees U/A and Supplemental Agreement with Roy L. Tripp and wife, Elsie P. Tripp, dated December 31, 1950; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, ROSALIE T. SMITH, D. C. TRIPP, FRANK T. WHITEHURST, JR., T. G. JOHNSTON, Trustees under the Will of Roy L. Tripp; and NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), Trustee U/A Elsie P. Tripp, dated September 17, 1966, Petitioners v. D. C. TRIPP, T. G. JOHNSTON, and FRANK T. WHITEHURST, JR., Individually Respondents"
    ],
    "opinions": [
      {
        "text": "BROCK, Judge.\nIt has long been established in this jurisdiction that a reasonable fee for legal advice and assistance in the management of a trust estate is allowable as a necessary expense of the trust estate. Lightner v. Boone, 221 N.C. 78, 19 S.E. 2d 144; Young v. Kennedy, 95 N.C. 265. Our statutes permit the allowance of reasonable sums for necessary charges and disbursements incurred in the management of a trust estate. G.S. 28-170; G.S. 7A-103(11). Also, our statutes authorize the judge to tax the costs, including reasonable attorney fees, in applicable cases. G.S. 6-21.\nThe instant action was for a declaratory judgment and for instructions to the fiduciaries in connection with the sale of certain trust property. It therefore falls clearly within the category of actions described in G.S. 6-21(2), and the judge was thereby authorized to tax a reasonable attorney fee in the costs of the action and apportion it among the parties. The fixing of reasonable attorney fees in applicable cases is a matter within the sound discretion of the trial court. Godwin v. Trust Co., 259 N.C. 520, 131 S.E. 2d 456. \u201cA discretionary order of the trial court is conclusive on appeal in the absence of abuse or arbitrariness, or some imputed error of law or legal inference.\u201d 1 Strong, N. C. Index 2d, Appeal and Error, \u00a7 54, p. 213.\nAppellants\u2019 exceptions and assignments of error numbers 1 and 4 are addressed to the refusal of the judge to grant summary judgment for appellants, or, alternatively, to dismiss the petition for allowance of attorney fees; exceptions and assignments of error numbers 2 and 3 are addressed to the refusal of the judge to exclude certain hearsay evidence. Appellants argue that petitioner\u2019s evidence failed to show (1) that his services were for the estate, (2) that they were reasonably necessary, and (3) the amount charged is not excessive. Appellants cite Lightner v. Boone, supra.\nAt the hearing it was stipulated that the judge might examine all pertinent documents in the hands of the Clerk of Superior Court of Pitt County including the case file of this declaratory judgment action together with other documents, instruments, and letters. The items included under this stipulation clearly show (1) that petitioner\u2019s services were rendered to the estate, and (2) that legal services to the estate were reasonably necessary. The determination of a reasonable fee was the purpose of the petition. This argument by appellants cannot be sustained.\nWith respect to appellants\u2019 objection to the admission of hearsay evidence, it is clear that the rules of evidence are relaxed at a hearing before the judge without a jury. Stansbury, N. C. Evidence 2d, \u00a7 4a. This argument by appellants cannot be sustained.\nAppellants\u2019 assignments of error numbers 1, 2, 3, and 4 are overruled.\nException and assignment of error number 5 is as follows:\n\u201cTo the order of the Court dated March 14, the findings of fact and conclusions of law therein and to the signing and entry thereof.\u201d\nThis constitutes a broadside exception and assignment of error as it relates to the findings of fact and the conclusions of law. Such an assignment of error presents for review the face of the record, and review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found, or admitted, support the conclusions of law and the judgment. Lamb v. McKibbon, 15 N.C. App. 229, 189 S.E. 2d 547. Whether the evidence supports the findings of fact is not presented.\nAppellants strenuously argue that finding of fact number 28 is improper and cannot support the conclusions of law. In finding of fact number 28, Judge Rouse undertakes to \u201ctake judicial notice\u201d of his own opinion of the special competence and skill of Mr. Underwood, the petitioner. Judge Rouse was not the trial judge before whom the declaratory judgment action was tried. The trial judge was Honorable William J. Bundy, now deceased. Therefore, Judge Rouse could not have observed the manner in which petitioner represented his clients in the trial. We agree with appellants that it was improper for Judge Rouse to recite as a fact his general opinion of petitioner gathered from unknown quarters.\nNevertheless, the improper \u201cjudicial notice\u201d taken by Judge Rouse does not detract from the other facts found. The other facts found from the evidence on this hearing clearly support the conclusion that petitioner is entitled to a reasonable fee for his services, and Judge Rouse has determined the amount in his discretion. Appellants have failed to show an abuse of discretion. Assignment of error number 5 is overruled.\nAffirmed.\nChief Judge Mallard and Judge Britt concur.",
        "type": "majority",
        "author": "BROCK, Judge."
      }
    ],
    "attorneys": [
      "Everett and Cheatham, by C. W. Everett, for movant, and Sam B. Underwood, Jr.",
      "Ragsdale & Liggett, by George R. Ragsdale, for appellants."
    ],
    "corrections": "",
    "head_matter": "ROY L. TRIPP, JR., and wife, SANDRA V. TRIPP, PATRICIA TRIPP LANCASTER and husband, D. L. LANCASTER, ROBERT E. TRIPP and wife, SHERI S. TRIPP; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., as Executors of the Will of Roy L. Tripp; DAVID E. OGLESBY, JR., D. C. TRIPP, WILLIAM T. SMITH, FRANK T. WHITEHURST, JR., B. B. SUGG, JR., Trustees U/A and Supplemental Agreement with Roy L. Tripp and wife, Elsie P. Tripp, dated December 31, 1950; NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), J. R. CULLIFER, WILLIAM T. SMITH, ROSALIE T. SMITH, D. C. TRIPP, FRANK T. WHITEHURST, JR., T. G. JOHNSTON, Trustees under the Will of Roy L. Tripp; and NORTH CAROLINA NATIONAL BANK, N.A. (Successor to State Bank & Trust Company), Trustee U/A Elsie P. Tripp, dated September 17, 1966, Petitioners v. D. C. TRIPP, T. G. JOHNSTON, and FRANK T. WHITEHURST, JR., Individually Respondents\nNo. 723SC573\n(Filed 20 December 1972)\n1. Attorney and Client \u00a7 9; Trusts \u00a7 12 \u2014 legal assistance in management of trust \u2014 expense of trust estate\nA reasonable fee for legal advice and assistance in the management of a trust estate is allowable as a necessary expense of the trust estate. G. S. 28-170; G.S. 7A-103(11).\n2. Attorney and Client \u00a7 9; Costs \u00a7 4 \u2014 declaratory judgment involving trust \u2014 attorney\u2019s fee taxable as costs\nThe trial court had authority to tax a reasonable attorney\u2019s fee as part of the costs and to apportion it among the parties in an action for a declaratory judgment and for instructions to the trustees in connection with the sale of certain trust property. G.S. 6-21(2).\n3. Costs \u00a7 4 \u2014 hearing on attorney\u2019s fees \u2014 hearsay evidence\nThe trial court did not err in the admission of hearsay evidence in a hearing upon a motion that a reasonable attorney\u2019s fee be taxed as part of the costs.\n4. Appeal and Error \u00a7 28 \u2014 broadside assignment of error to findings \u2014 review of face of record\nBroadside assignment of error to the findings of fact and conclusions of law presents for review only the face of the record, and review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the conclusions of law and the judgment.\n5. Appeal and Error \u00a7 57; Costs \u00a7 4 \u2014 order setting attorney\u2019s fee \u2014 court\u2019s opinion as to attorney\u2019s competence\nWhile it was improper for the court to recite as a fact its own opinion of the competence and skill of petitioner-attorney in its order setting an attorney\u2019s fee in an action involving the sale of trust property tried before another judge, the other facts found from the evidence support the court\u2019s conclusion that petitioner is entitled to a reasonable fee for his services and the amount of the fee set by the court.\nAppeal by Roy L. Tripp, Jr., and wife, Patricia Tripp Lancaster and husband, Robert E. Tripp and wife, and William T. Smith and wife, some of the plaintiffs, from a judgment entered 15 March 1972 by Rouse, Judge, following a hearing in chambers on 14 January 1972.\nAttorney Sam B. Underwood, Jr., and the beneficiaries of several trust estates were unable to agree upon a fee for legal services rendered in connection with the preparation, prosecution, and conclusion of the above entitled action. Mr. Underwood filed a motion in the cause in the Superior Court \u25a0 requesting the judge to determine the amount of a reasonable fee and order payment of the same. Judge Rouse, Resident Judge of the Third Judicial District, which includes Pitt County, heard the parties in chambers and examined the pertinent records in the clerk\u2019s office. Judge Rouse made extensive findings of fact, covering eleven pages of the printed record, and concluded that a total fee of 810,000.00 was reasonable. From this amount he deducted $5,500.00 which had already been paid, and ordered payment of the balance.\nAs noted above, some of the plaintiffs appealed.\nEverett and Cheatham, by C. W. Everett, for movant, and Sam B. Underwood, Jr.\nRagsdale & Liggett, by George R. Ragsdale, for appellants."
  },
  "file_name": "0064-01",
  "first_page_order": 88,
  "last_page_order": 91
}