Cory's Estate, In re, 54331
| Citation | 184 N.W.2d 693 |
| Decision Date | 11 March 1971 |
| Docket Number | No. 54331,54331 |
| Court | United States State Supreme Court of Iowa |
| Parties | In the Matter of the ESTATE of Ernest C. COPY, Deceased. LINDGREN and Davis, Appellants, v. Melville V. CORY, Executor of the Last Will and Testament of Ernest C. Cory, Deceased, and Melville V. Cory, Individually, Appellees. |
Lindgren & Davis, Des Moines, for appellants.
Charles F. Feight, Ankeny, and Herrick, Langdon, Belin & Harris, Des Moines, for appellees.
This is an appeal by Lindgren and Davis, attorneys, from the ruling and order of the trial court on objections to the final report of Ankeny State Bank as executor of the estate of Ernest C. Cory.
Ankeny State Bank was named as executor of the will of Ernest C. Cory which was dated January 18, 1965. This will was the subject of a will contest, trial of which resulted in a jury verdict setting the will aside. Proponents, other than Ankeny State Bank, the executor, appealed and the case was affirmed by this court. (See In re Estate of Cory, 169 N.W.2d 837 (Iowa 1969)). The opinion was filed on July 24, 1969, and the rehearing was denied on September 15. On September 18 the earlier will of Ernest C. Cory, dated January 21, 1956, was admitted to probate, and Melville V. Cory qualified as executor. He is still acting in this capacity.
On October 17, 1969, Ankeny State Bank filed its final report in which it asked that its fees and the fees of its attorneys be allowed. The statement of Lindgren and Davis, attorneys, originally attached to the report named no amount. By amendment filed on October 31, the statement of Lindgren and Davis asked for $1678.50 for their ordinary services, $1595.00 for extraordinary services other than services in connection with the will contest and $16,277.15 for services in the trial court in the will contest making a total amount requested as attorneys' fees the sum of $19,551.00.
Melville V. Cory, as executor, and as an individual, filed objections to the final report. The report and the objections were heard by a judge of the Polk district court and evidence was taken which included the files and the record in the will contest.
Thereafter, the court filed findings of fact and conclusions of law 'that there was no just cause for the entry of the Executor and its attorneys or their continued participation in the will contest' and that 'This finding is taken into account in determining and fixing the fees of the Executor and its attorneys.'
The court ordered that the executor should be allowed $1678.50 for its ordinary services and $1200.00 for its extraordinary services, making a total allowance to the executor of $2878.50. The court found the amounts claimed by Lindgren and Davis for attorney fees were not reasonable, and that $1678.50 for ordinary services and $2200.00 for extraordinary services, a total of $3878.50, was a fair and reasonable fee for the services of said attorneys.
Ankeny State Bank, the executor, did not appeal. Lindgren and Davis, its attorneys, have appealed alleging the trial court was in error in holding that under the facts, there was not a sufficient showing of 'just cause' for participation by the executor and its attorneys in the will contest.
Before considering this contention we narrate sufficient facts to identify the parties involved and set the events leading to the claim for attorneys' fees.
Ernest C. Cory died May 30, 1965. His marriage to his first wife, Nellie, ended in divorce. Their two children, Albert D. Cory and Gladys Cory Spring are two of the three children surviving the testator. Melville, the other surviving child, was born to testator and his second wife, Edna, who died in 1963. Cory had married his surviving widow, Edith, in 1964.
The January 18, 1965 will had been executed in California. It was admitted by probate in the Polk district court June 14, 1965. The value of the estate's assets was fixed at $112,820.33 by the inheritance tax appraisers.
November 2, 1965 Melville Cory, represented by attorneys Smedal and Feight, filed the will contest mentioned. November 24, Coppola and Trout as attorneys for Edith Cory, Gladys Cory Spring and Albert D. Cory who were all of the beneficiaries in the will contest other than Melville, filed answer to the petition to set aside the will.
At this point all of the named beneficiaries, that is those who were personally interested in the estate, were represented in the will contest by counsel of their own choosing.
November 29, 1965 Lindgren and Davis as attorneys for the Ankeny State Bank appeared in the will contest and filed motion to strike. Other than being named executor, the bank had no interest in the January 18, 1965 will. No authorization for the bank to participate in and employ counsel as a proponent of the will during the will contest was ever obtained from the court.
The will contest came on for trial in May 1967. Coppola and Trout were personally present at all times during the trial representing their clients as proponents and named beneficiaries under the will. Mr. Smedal was present representing Melville Cory. The jury found the will dated January 18, 1965 was the result of undue influence and the trial court entered a judgment setting it aside.
After the trial, the bank filed application asking for instructions with reference to participating in the appeal to this court. September 29, 1967 the probate court made an order directing the executor to continue to act in preserving the property but not to participate in the appeal.
I. The first problem for determination is the extent of our view--whether for correction of errors at law or de novo as in equity. Rule 334, Rules of Civil Procedure.
This is ordinarily important since in a law action tried by the court under the limited extent of our review its findings of fact have the effect of a special verdict and are equivalent to a jury verdict and if supported by substantial evidence and justified as a matter of law, the judgment will not be disturbed on appeal. Rule 344(f)(1), R.C.P. Whereas, in equity it is our duty in a de novo review to examine the whole record and adjudicate rights anew on those propositions properly presented, provided issue has been raised and error, if any preserved in the course of trial proceedings.
As stated, the appeal here arises from the court's ruling on objections to the bank's final report as executor of the 1965 will. Before adoption of the Iowa Probate Code it was the law in this jurisdiction that a hearing before the trial court upon objections to the fiduciary's report and resistance thereto being a proceeding in probate was at law and not in equity. In re Estate of Finarty, 219 Iowa 678, 680, 259 N.W. 112, 114; In re Estate of Pierce, 245 Iowa 22, 29, 60 N.W.2d 894, 899.
Answer to the problem stated turns on whether section 633.33 of the probate code dictates any change in the law in this respect. This section provides:
Following this section in the Iowa Code Annotated there is this Bar Committee comment:
Attorney fees are included in the definition of costs of administration. Section 633.3(8). Contests involving costs of administration are not included in the three categories mentioned as triable as law actions unless, of course, it be determined that a hearing on disputed items designated as costs of administration is 'for the establishment of contested claims.' Such construction is untenable in view of the difference between charges and claims against an estate.
There is a basic distinction between debts of a decedent and those items classified as charges under the definition contained in the Code. The latter do not stand on the same ground as his debts in respect to such estate. It is not necessary for their payment that they be filed as a claim or debt against it since the obvious purpose of section 633.410 is to provide the personal representative with notice concerning extent and nature of claims outstanding against the estate he administers in order to enable him to effect a prompt and orderly settlment thereof. When charges are made by the estate or someone entitled to bind the estate, such notice to the personal representative would be superfluous and we will not assume the legislature intended to burden the fiduciary with the necessity of giving notice to himself of that concerning which he already has or should have actual notice.
Claims against an estate must be filed within the time specified in the Code. Yet, section 633.410 which prescribes the limitation on filing claims against a decedent's estate expressly excludes charges. Costs of administration are included in the definition of charges. Section 633.3(4).
Costs of administration are cared for in a different manner. The personal representative is required to render an account of his administration of the estate in his final report and at such other times as the court may direct. Sections 633.469 to 633.477. Those charges incurred during administration must be submitted and approved by the probate court after notice and hearing unless waived. Section 633.478. Fees of the personal representative for services rendered and those of his attorney are to be determined by the court. Sections 633.197 and 633.198.
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