Estate of Kerr, In re

• Court: Washington Supreme Court
• Writing for the Court: SMITH; DURHAM
• Citation: Estate of Kerr, In re, 949 P.2d 810, 134 Wn.2d 328 (Wash. 1998)
• Decision Date: 22 January 1998
• Docket Number: No. 64881-6
• Parties: In re ESTATE OF Mary Margaret KERR, Deceased. Stacy R. BENNETT, Personal Representative, Petitioner, v. Susan RUEGG, Respondent.

Page 328

134 Wn.2d 328

949 P.2d 810

In re ESTATE OF Mary Margaret KERR, Deceased Stacy R. BENNETT, Personal Representative, Petitioner, v. Susan RUEGG, Respondent.

No. 64881-6.

Supreme Court of Washington En Banc.

Argued Sept. 23, 1997.

Decided Jan. 22, 1998.

Stokes, Eitelbach & Lawrence, Scott Johnson, Laura Buckland, Seattle, for petitioner.

Paul Cantor, Ryan, Swanson & Cleveland, Robert Bryan, John Mele, Seattle, for respondent.

SMITH, Justice.

Petitioner Stacy R. Bennett, personal representative in a decedent estate, seeks review of a Court of Appeals per curiam decision which reversed a judgment of the King County Superior Court awarding attorneys' fees to the estate of Mary Margaret Kerr on behalf of Petitioner, personal representative of the estate, who successfully resisted her removal in a probate proceeding. We granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether, under the general fee provision of the Probate Code, RCW 11.96.140, ¹ courts may award discretionary attorneys' fees in removal proceedings or whether that provision is inapplicable because the specific section of RCW 11.68.070 ² relating to removal of a personal representative is the exclusive authority for award of attorneys' fees.

STATEMENT OF FACTS

On January 3, 1995, Mary Margaret Kerr died leaving a will. ³ It contained specific bequests to each of her five grandchildren, including Petitioner Stacy R. Bennett, and designated her daughter, Respondent Susan Ruegg, as residuary beneficiary. ⁴ Ms. Kerr named Petitioner, Stacy R. Bennett, her granddaughter who is also Respondent's daughter, as personal representative ⁵ of her estate valued at about $24,000. ⁶ Upon admission of Ms. Kerr's will to probate in the King County Superior Court, the court issued letters testamentary appointing Petitioner Stacy R. Bennett as personal representative, as directed by the will, on January 6, 1995. ⁷

Respondent Susan Ruegg and Petitioner Bennett are mother and daughter. They have been estranged since Petitioner's childhood. Intense animosity between them led to mutual accusations of dishonesty and misconduct in this proceeding brought by the mother to remove the daughter as personal representative of the estate of Respondent's mother who was Petitioner's maternal grandmother. ⁸ On March 30, 1995, Respondent filed a motion which included removal of Petitioner as personal representative, appointment of an independent personal representative, and a full accounting of estate assets. ⁹ On May 5, 1995, King County Superior Court Commissioner Maurice M. Epstein granted the motion removing Petitioner as personal representative. ¹⁰ Petitioner brought a motion for revision on June 8, 1995. ¹¹ Judge Joan E. DuBuque reversed the commissioner's ruling and reinstated Petitioner as personal representative. ¹²

Petitioner Stacy R. Bennett then brought a motion for attorneys' fees under the general fee provision in RCW Chapter 11.96, which governs jurisdiction and procedure in probate actions. Referring to the general fee provision of RCW 11.96.140, Petitioner sought an award of attorneys' fees and costs incurred by the estate in successfully opposing Respondent's motion for removal. ¹³ On July 18, 1995, King County Superior Court Judge Jim Bates awarded attorneys' fees of $4,076.20, one-half the amount sought, in favor of the estate of Mary Margaret Kerr against Respondent Susan Ruegg. The order provided:

THIS MATTER came before the Court on the Estate's Petition for Award of Attorneys' Fees and Costs. The Court has considered the petition, the declaration of Scott A.W. Johnson and the exhibits thereto, the response of Susan Ruegg, the Declaration of Craig E. Schuman, the Declaration of Paul A. Cantor and exhibits thereto, and the other pleadings filed in this matter.

NOW, THEREFORE, IT IS HEREBY ORDERED that the Estate's request for an award of its attorneys' fees and costs shall be and hereby is GRANTED in part.

IT IS FURTHER HEREBY ORDERED that the Estate shall be awarded in its favor against Susan Ruegg one half of its reasonable attorneys' fees and costs incurred in responding to Susan Ruegg's petition and in filing the request for attorneys' fees and cost in the amount of $4076.20. Susan Ruegg shall be liable to the estate in that amount.[ ¹⁴

On July 28, 1995, a King County court commissioner entered judgment as follows:

SUMMARY JUDGMENT

Pursuant to RCW 4.64.030, the following information should be entered in the Clerk's Execution Docket:

1. Judgment Creditor: The Estate of Mary Margaret Kerr

2. Judgment Creditor's Attorneys: Lora L. Brown and Scott A.W. Johnson and the firm of Stokes, Eitelbach & Lawrence, P.S.

3. Judgment Debtor: Margaret Susan Kerr Bennett Hartmann Ruegg (formerly known as Susan or Sue Bennett or Susan or Sue Hartmann, and currently known as Susan or Sue Ruegg) ("Susan Ruegg").

4. Amount of Judgment: $4076.20

5. Amount of Interest Owed to Date of Judgment: $0

6. Total of Taxable Costs and Attorneys' Fees: $0

ENTRY OF JUDGMENT

THIS MATTER came before the Court on presentation by Stacy R. Bennett, Personal Representative of the Estate of Mary Margaret Kerr, of a judgment for money due by Susan Ruegg. The judgment was presented pursuant to RCW 4.60.070 and based on the Court's order awarding attorneys' fees and costs which is attached hereto as Exhibit A. Based on the foregoing:

THE COURT HEREBY ENTERS JUDGMENT in favor of the Estate of Mary Margaret Kerr against Susan Ruegg in the amount of $4,076.20.[ ¹⁵

On August 15, 1995, Respondent Susan Ruegg appealed the award of attorneys' fees, ¹⁶ arguing that the award under RCW 11.96.140 is contrary to the fee provision in RCW 11.68.070. Referring to RCW Chapter 11.68, which provides for settlement of small estates without administration, she argued that the specific fee provision of RCW 11.68.070 applied and not the general fee provision of RCW 11.96.140. ¹⁷

In an unpublished per curiam decision dated November 4, 1996, the Court of Appeals, Division One, reversed the judgment against Respondent, holding that the more general fee provision in RCW 11.96.140 does not apply where another specific section of the probate code has its own fee provision. ¹⁸

The personal representative of the estate, Petitioner Bennett, petitioned this Court for review which we granted on April 2, 1997.

DISCUSSION

Petitioner contends she is entitled to attorneys' fees under the general probate statute, RCW 11.96.140. She contends that under rules of statutory construction, in construing potential conflict between general and specific statutes, courts must harmonize the statutes, if at all possible, and consider legislative intent. According to Petitioner, the Court of Appeals did not attempt to harmonize the statutes nor consider legislative intent and therefore its decision conflicts with decisions of this Court. Petitioner also contends this Court has awarded attorneys' fees under RCW 11.96.140 in similar cases where the litigation did not substantially benefit the estate.

Conversely, Respondent asserts this Court has consistently held that a specific statute supersedes a general statute when both might apply or when the general provision conflicts with the specific provision. According to Respondent, consistent with our decisions, the Court of Appeals properly determined that because the statutes are in conflict, the specific provision supersedes the general provision. Respondent also claims attorneys' fees under RCW 11.96.140 are not appropriate in this case because the litigation ultimately benefited the estate. Both Petitioner and Respondent raise questions of public policy.

RULES OF STATUTORY CONSTRUCTION

Relying on Omega Nat'l Ins. Co. v. Marquardt, ¹⁹ Petitioner contends the court may award discretionary attorneys' fees under RCW 11.96.140 without relying solely upon RCW 11.68.070. In Omega, insurance companies challenged the Insurance Commissioner's authority to regulate life insurance rates. They argued that the specific statute authorizing the Commissioner to regulate rates did not apply to life insurance. The companies claimed that the specific rate chapter of the statute controlled over the general chapter authorizing the Commissioner to regulate unfair practices because specific statutes prevail over general ones. This Court concluded the two statutes could be harmonized and the specific statute did not prevent application of the general one, stating:

In interpreting a statute, we are obliged to construe the enactment as a whole, and to give effect to all language used. Every provision must be viewed in relation to other provisions and harmonized if at all possible. Preference is given a more specific statute only if the two statutes deal with the same subject matter and conflict to such an extent that they cannot be harmonized.[ ²⁰

Petitioner also cites State v. Board of Yakima County Comm'rs, quoting this Court's statement that "[i]t is the duty of the court to reconcile apparently conflicting statutes and to give effect to each of them, if this can be achieved without distortion of the language used." ²¹ Relying upon Omega and Yakima, Petitioner contends that courts can harmonize the specific and general statutes governing attorneys' fees in probate proceedings because the statutes are not in conflict.

The specific statute, RCW 11.68.070, allows courts to award attorneys' fees when a party challenging a personal representative is successful and the powers of the personal representative are restricted. That statute does not mention attorneys' fees for a personal representative who successfully defends against a challenge, as in this case. The general statute, RCW 11.96.140, allows courts to award attorneys' fees to any party in a probate action "as justice may require." Petitioner argues that because RCW 11.68.070 does not prohibit award of attorneys' fees to a successful personal representative, the two statutes would be...