In the Matter of: Will of Carlsen, (02-463) 05/06/2003

Appeal by defendant from order entered 20 November 2001 by Judge W. Osmond Smith, III, in Alamance County Superior Court. Heard in the Court of Appeals 24 March 2003.

Adams Kleemeier Hagan Hannah & Fouts, P.L.L.C., by Gary L. Beaver, for defendant-appellant Roberta Jane Carlsen.

Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Thomas R. Peake, II, for defendant-appellees.

    EAGLES, Chief Judge.

    Roberta Jane Carlsen (“executrix”) appeals from the trial court's order awarding attorney fees to defendants Roberta C. Carlsen and Christian Edward Carlsen (“defendants”). Executrix argues that the trial court abused its discretion by ordering her to pay attorney fees for two reasons: (1) executrix did not act as an individual party and (2) the trial court did not find that executrix exhibited bad faith while acting as an agent for the estate. We agree and reverse the trial court's order.
    Christian Elmer Carlsen (“decedent”) married Roberta C. Carlsen (“Mrs. Carlsen”) on 3 December 1932. The couple lived together in Fort Lauderdale, Florida until 1997. Decedent and Mrs. Carlsen had three children during their marriage, including Christian Edward Carlsen (“Christian”), Shirley Hart (“Hart”) and executrix. Decedent moved in with his daughter, executrix, in 1997. Decedent lived with executrix until his death on 29 November 1999.
    Decedent executed a will in 1994. This will appointed Mrs. Carlsen as the personal representative and referred to a simultaneously created trust for the benefit of Mrs. Carlsen, Christian, Hart and executrix. On 18 November 1999, eleven days before his death, decedent executed a document titled “Revocation of Trust” that terminated this trust. Decedent executed a promissory note to executrix in the amount of $200,000 on 18 November 1999. Decedent also executed a will on 18 November 1999. The division of decedent's property according to the 1999 will differed significantly from the terms of the 1994 will. The 1999 will also appointed executrix as personal representative of decedent's estate.
    Decedent's estate requested a declaratory judgment on 28 February 2000. The purpose of this action was “to determine and declare the legal rights of the parties to the personal propertyheld” in the trust created in 1994. Mrs. Carlsen and Christian counterclaimed for declaratory judgment against the estate. Mrs. Carlsen also filed a caveat to the 1999 will on 22 December 2000. The caveat alleged that the 1999 will was invalid because decedent lacked testamentary capacity to execute it, that executrix exerted undue influence over decedent, that decedent executed the will as a result of duress from executrix and that the will was a product of fraud on the part of executrix.
    The caveat action was consolidated for hearing with the declaratory judgment action by consent of the parties and upon an order of the trial court on 5 February 2001. In a stipulation signed by executrix on 11 April 2001 in her capacity as executrix and individually, executrix agreed that all of the documents executed on 18 November 1999, including the 1999 will, the trust revocation and the promissory note were invalid as a result of lack of testamentary capacity. The trial court concluded that decedent did not possess testamentary capacity on 18 November 1999 and declared the 1999 will, trust revocation, and promissory note all invalid. By a separate order on 20 November 2001, the trial court ordered executrix individually to pay the amount of $23,834.24. Of this amount, $20,000 was assigned as payment of Mrs. Carlsen and Christian's total of $21,794.48 in attorney fees. The remainder of the sanction amount was composed of litigation costs and other expenses. From this order, executrix appeals.
    Executrix argues that the trial court abused its discretion by ordering her to pay attorney fees individually because she did notparticipate in the consolidated action as a party. Alternatively, executrix argues that the trial court abused its discretion by ordering her to pay attorney fees individually as a result of her actions as personal representative of the estate. We agree that the trial court did not find sufficient facts to support its sanction against plaintiff. Therefore we reverse the trial court's order and remand for further proceedings.
    The trial court ordered executrix to pay attorney fees individually pursuant to G.S. § 6-21(2). In pertinent part, that statute reads:
        Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court:

        . . . .

        (2) Caveats to wills and any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder; provided, that in any caveat proceeding under this subdivision, the court shall allow attorneys' fees for the attorneys of the caveators only if it finds that the proceeding has substantial merit.

G.S. § 6-21(2)(2001). A trial court's decision to tax costs and attorney fees to one party cannot be reversed absent an abuse of discretion. See In re Ridge, 302 N.C. 375, 275 S.E.2d 424 (1981); In re Will of Sechrest, 140 N.C. App. 464, 537 S.E.2d 511 (2000), disc. rev. denied, 353 N.C. 375, 547 S.E.2d 16 (2001). An abuse of discretion is described as a decision “manifestly unsupported by reason or so . . . arbitrary that it could not have been the result of a reasoned decision.” Augur v. Augur, 356 N.C. 582, 589, 573S.E.2d 125, 130 (2002) (quoting Briley v. Farabow, 348 N.C. 537, 501 S.E.2d 649 (1998)).
    Here, the trial court did not find as a fact that executrix took any action as an individual party to the consolidated lawsuit. The only mention of executrix's behavior offered by the trial court is contained in finding of fact #3:
        3. Robert L. Johnson appeared as counsel of record for the Estate of Christian E. Carlsen, deceased (File No. 00 CvS 665) and Propounders, Roberta Jane Carlsen, individually and as Executrix, and Shirley Carlsen Hart in the caveat proceeding.
It appears that the trial court determined that executrix was acting as a party based on the way her counsel characterized his role, namely as counsel for the “propounder.” An executrix who propounds a will for her own individual purposes as a potential beneficiary may be charged with payment of costs and attorney fees according to G.S. § 6-21(2). See In re Will of Sechrest, 140 N.C. App. 464, 537 S.E.2d 511 (2000). However, one of an executrix's duties is to propound the will during a caveat action as a representative of the estate. See Wells v. Odum, 207 N.C. 226, 176 S.E. 563 (1934). The executor acts as a proponent of the will “to prove that the instrument in question was executed with proper formalities required by law.” See In re Will of Parker, 76 N.C. App. 594, 597, 334 S.E.2d 97, 99, disc. rev. denied, 315 N.C. 184, 337 S.E.2d 859 (1995), overruled on other grounds, Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987). Here, in order to require executrix to pay attorney fees under G.S. §6-21(2) the trial court is required to have concluded thatexecutrix acted during the consolidated lawsuit both as an individual and as a representative of the estate. For that portion of the hearing that executrix acted in her own behalf as an individual beneficiary, she may properly be taxed costs under G.S. § 6-21(2). However, the extent of executrix's actions here as an individual is not clear from the record because the trial court failed to find facts on that issue and did not apportion the attorney fees according to that distinction.
    Executrix further assigns error to the trial court's directive to pay attorney fees as a sanction for her role as representative of the estate. Executrix argues that the trial court made insufficient findings to hold her liable personally for her actions as executrix because it did not make findings of mismanagement or bad faith. We agree. G.S. § 6-31 allows for the costs of an action to be taxed against an estate representative only as follows:
        In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected out of the estate, fund or party represented, unless the court directs the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense.

G.S. § 6-31 (2001)). Here, where the trial court made no finding of mismanagement or bad faith by executrix, an award of attorney fees based upon executrix's actions in her capacity as arepresentative of the estate are therefore an inappropriate exercise of judicial discretion and must be reversed.
    Here, the trial court failed to make sufficient findings of fact to substantiate its award of attorney fees and costs. The trial court failed to find with specificity what portion of Mrs. Carlsen and Christian's attorney fees were attributable to executrix's actions as an individual proponent. The trial court also failed to find that executrix acted with bad faith or engaged in mismanagement of the estate in her representative role. The trial court's order is “manifestly unsupported by reason” because it failed to make specific findings of fact as to the extent and nature of executrix's activity in the consolidated will caveat and declaratory judgment actions. As a result, we hold that the trial court abused its discretion by requiring executrix to pay those fees individually. Accordingly, we reverse and remand for further proceedings.
    Reversed and remanded.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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