client's estate when the client dies. It must always be remembered that if a bank or trust company refuses to permit the attorney to act it is taking away business from the attorney; and when one takes away business from another, friendly relations, to say the least, are not established. Attorneys are just as human as men in other walks of life and they react to the attitude of the bank or trust company in the same manner that other men would. Good business policy, therefore, seems to dictate that as much latitude in retaining counsel in the work of administering estates be allowed as is consistent with the responsibility that the bank or trust company assumes. If it would be perfectly safe to permit the attorney who represented the decedent in his lifetime to represent the bank or trust company in the administration of his estate, he should be allowed to do so. Considerable agitation has been set on foot by attorneys to restrict the activities of banks or trust companies in getting fiduciary business, the motive of which probably lies in the fact that a certain amount of business is being taken from attorneys. If, by a liberal attitude on the part of banks or trust companies, this attempt to get adverse legislation can be discouraged, that is much to be desired. In conclusion it may be said that: 1. It is absolutely improper for any corporation, and especially a bank or trust company, to do anything which can be considered practicing law. In observing this rule it is better to err on the side of conservatism than otherwise. The consequences in some states are serious; in all, it is unethical. 2. The counsel who are regularly retained by the bank or trust company may not be able to handle certain fiduciary matters as satisfactorily as the attorney who usually represented the testator or the creator of the trust. 3. A large proportion of the business is derived from the lawyers and consequently their good-will is valuable. 4. Adverse legislation is the all too likely result of methods considered reprehensible by the various bar associations, which are always trying to improve the administration of justice. REVIEW QUESTIONS 1. Why is the advice of counsel essential to a fiduciary corporation? 2. What has caused some friction between trust companies and lawyers as a class? 3. What are the requirements for admission to the bar? 4. Why is it difficult to make a will? 5. Why are fiduciary corporations disqualified for such work? What is the procedure when a customer employs them to make a will? To whom does a lawyer, under such circumstances, owe the higher obligation? 6. What conflict of interest arises at times in the preparation of a will? 7. To what extent can a fiduciary corporation go in advising customers in legal matters? Why is it desirable that lawyers and bankers should be on friendly terms? 8. Where a fiduciary corporation is acting, should it use its own counsel? Why? Is the rule unvarying? CHAPTER LXIV PURPOSE AND THEORY OF ESTATE ACCOUNTING § 549. Purpose of Estate Accounting The executors have to account for the estate of the testator come to their hands, or to the hands of any other persons by their order, or for their use, and to show that they have dealt with the whole in due course of administration.1 It is necessary at the close of the administration for the executor to render a detailed account of his transactions. To do this he must keep accurate records. The ultimate purpose of all estate accounts is the fulfilling of the law's requirement that the executor make certain reports covering his stewardship. But even if there were no such requirement, there is so much danger of dispute, so much opportunity for ill-feeling in handling the funds of another in what is usually a personal rather than a strictly business relation, that full records are most desirable. The prudent man, recognizing the difficulties that will arise in the more or less gratuitous care of the business affairs of others-who are often women and children. untrained in business-will see the advisability of being most careful to have for his own protection a complete account of all that he has received and all that he has turned over. The account should state if an inventory has been filed, and if none has been filed, the account itself should furnish the information usually thus supplied. It should likewise state whether or not advertisements for claims have been published, what claims have been presented, what allowed, and what rejected; and the time and manner in which they were rejected or disputed, and the reason therefor. Also, 1 Caldicott, Executorship Accounts. |