Buder's Estate, In re
| Decision Date | 10 November 1958 |
| Docket Number | No. 46685,No. 1,46685,1 |
| Citation | 317 S.W.2d 828 |
| Court | Missouri Supreme Court |
| Parties | In Re ESTATE of G.A. BUDER, Deceased. Baron & Freed et al., Respondents. Oscar E. Buder, Appellant |
James J. Milligan, St. Louis, for appellant.
Charles B. Baron, David Baron, Baron & Freed, St. Louis, for respondents.
This action originated in the Probate Court of the City of St. Louis, where, upon petition filed by G.A. Buder, Jr., Executor of the Estate of G.A. Buder, deceased, the law firm of Baron & Freed (composed of David Baron, Charles Baron, Raymond Freed and Morton Baron) was allowed the sum of $12,160 as attorneys' fees for services rendered the estate. Upon appeal to the Circuit Court by Oscar E. Buder, who has an unliquidated and unadjudicated claim against the estate, the cause was tried de novo to the court, resulting in a judgment sustaining the allowance, from which judgment Oscar E. Buder, hereinafter referred to as appellant, prosecutes an appeal to this court.
G.A. Buder and appellant were brothers and, from January 1, 1908, until January 1, 1946, were engaged as co-partners in the practice of law and extensive investment ventures under the firm name of Buder & Buder. That partnership was dissolved by appellant on December 31, 1945. On January 2, 1946, he instituted in the Circuit Court of the City of St. Louis an action against G.A. Buder (and the First National Bank of St. Louis, joined as the holder of certain securities allegedly the property of the partnership) for an accounting, in which he alleged numerous failures on the part of G.A. Buder to pay over and transfer to appellant his share of the profits and assets of the partnership.
G.A. Buder employed David Baron to represent him in that action in 1951. On June 6, 1952, a Second Amended Petition was filed. On October 14, 1952, David Baron, in behalf of G.A. Buder, filed answer and counterclaim to the second amended petition. On January 16, 1953, a referee was appointed to take and report the testimony. Extended hearings were held. G.A. Buder died testate on April 14, 1954. His son, G.A. Buder, Jr., a lawyer, was named in the will and thereafter was appointed and qualified as executor of the estate. The inventory of the estate, filed on April 29, 1954, showed assets of the value of $4,850,601. A "third settlement", filed in 1956, showed assets in the amount of $4,377,040. The accounting action was revived against G.A. Buder, Jr., as executor. It is still in progress and the attorneys' fees sought in the instant proceeding relate to legal services rendered the estate from December 20, 1955, to December 28, 1956.
On May 7, 1954, G.A. Buder, Jr., Executor, filed in the probate court a petition to employ and the probate court, on May 17, 1954, authorized him to employ Baron & Freed to represent the estate in said action. On interpleader filed by First National Bank, Pontiac Realty Company, a corporation, which had taken over the securities formerly held by the First National Bank, was substituted as a party defendant in lieu of the bank. The hearings before the referee on the issues presented by the second amended petition and the answers of the Executor and Pontiac Realty Company continued. It was said during the trial of the instant proceeding that they then exceeded 10,000 pages of transcript.
On November 1, 1954, a "supplemental petition to second amended petition" was filed. In that petition, Pontiac Realty Company, Arcadia Realty Company, Arc Realty Company, Arcadia Timber Company, and Lydiade Investment Company, corporations, and G.A. Buder, Jr., individually, were also named as defendants. The theory upon which they were made parties was that the five corporations were "straw" holders of assets constituting partnership property of Buder & Buder that had been wrongfully transferred to them by G.A. Buder and that G.A. Buder, Jr., was the president and chief officer of said corporations. The "supplemental" petition, on motion of defendants, was dismissed on September 5, 1956, without prejudice. It was never referred to the referee.
On October 15, 1956, a motion was filed asking leave to file a "third amended petition", naming as parties the aforesaid added defendants. The third amended petition, in much more detail than did the "supplemental" petition, alleges, in essence, that assets belonging to the partnership of Buder & Buder were placed by G.A. Buder in said corporations, of which G.A. Buder, Jr., is the chief executive officer, and that the profits and appreciations in value of said assets had pyramided into enormous sums, alleged to exceed $12,000,000, which, in equity, belonged to the partnership. On February 15, 1957, the motion to file said third amended petition was sustained and summons ordered issued for the additional defendants.
Pontiac Realty Company, Arcadia Realty Company, Arc Realty Company, Arcadia Timber Company, Lydiade Investment Trust and G.A. Buder, Jr., in his individual capacity, will be sometimes referred to as the "added defendants", and the accounting suit will be referred to simply as Buder v. Buder".
In this court, appellant has presented two contentions:
(1) "Baron & Freed, attorneys, were employed to represent G.A. Buder, Jr., Executor of the Estate of G.A. Buder, deceased, and they cannot be paid out of the assets of the estate, on the Executor's petition, for representing the personal and corporate interests of G.A. Buder, Jr., on issues in the accounting suit which are antagonistic to and conflicting with the interests of the Estate of G.A. Buder."
(2) "The evidence introduced in behalf of Executor, G.A. Buder, Jr., of the Estate of G.A. Buder, deceased, failed to show any services rendered by Baron & Freed in behalf of the said estate to the exclusion of other defendants, and this fact was not considered by the Circuit Court."
The petition for allowance of the fees in question was filed December 28, 1956. It alleges in detail legal services rendered G.A. Buder, Executor, by Baron & Freed in the case of Buder v. Buder, from December 20, 1955, to December 28, 1956, of the reasonable value of $12,160.
David Baron testified: He had practiced law since 1916 and had been employed in the case of Buder v. Buder for three years prior to the death of G.A. Buder. He personally participated in the calculation of time spent by his firm solely in the case of Buder v. Buder and the time alleged in the petition for fees was correct. Prior to seeking the allowance, he discussed with the executor the time spent and the value of the services rendered. The calculations made by them with reference to the value of the services of his firm from December 20, 1955, to December 28, 1956, were: 2 days of hearings at $300 per day; 3 days in Detroit preparing for and taking depositions pursuant to notice given by counsel for appellant at $300 per day; 533 hours of office work at $20 per hour; a total of $12,160. During all of the period from December 20, 1955, to December 28, 1956, all of the proceedings in the case of Buder v. Buder were at issue under the second amended petition, which contained 25 paragraphs and involved numerous issues. In cases of the nature of the litigation and the amount involved in Buder v. Buder, lawyers of St. Louis charge from $25 to $75 per hour, and the fees sought in the instant proceeding are reasonable. At the hearing in the probate court on the petition for allowance of fees, in answer to a question by the probate judge, counsel for appellant admitted the fees sought were reasonable. (Counsel for appellant volunteered the remark that he made no such statement.)
On cross-examination, David Baron testified: The depositions taken in Detroit at the instance of appellant were taken under the pleadings set forth in the second amended petition. The "supplemental petition" had been filed, but the motion to dismiss it either was pending or it had been sustained when the depositions were taken. The original records of the 533 hours spent (in addition to the hearings and depositions) is shown by "time books" kept by each member of the firm. When witness Baron and his associate, Charles Baron, were in Detroit, they were there as counsel for the Executor and did not represent the parties who were afterwards made defendants. Motions to dismiss the supplemental petition were filed by Baron & Freed in behalf of the added defendants prior to December 20, 1955, but the petition for fees does not include any charge for that work. The motion for leave to file the third amended petition, which also included the added defendants, was filed on October 15, 1956. The petition, consisting of 59 paragraphs, sets forth extensive charges that the added defendants, as "straws", hold assets belonging to the former partnership of Buder & Buder, for which they and G.A. Buder, Jr., individually, should account. Acting in behalf of the Executor and Pontiac Realty Company, which priorly had been substituted as a party defendant in lieu of the First National Bank, Baron & Freed opposed its filing and filed numerous motions and memorandums in support of their position. However, on February 15, 1957, the motions to strike and dismiss the third amended petition were overruled.
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