Estate of Trotalli, Matter of

• Court: Wisconsin Supreme Court
• Writing for the Court: ABRAHAMSON
• Citation: Estate of Trotalli, Matter of, 366 N.W.2d 879, 123 Wis.2d 340 (Wis. 1985)
• Decision Date: 30 April 1985
• Docket Number: No. 82-2068,82-2068
• Parties: In the Matter of the ESTATE of Ellen TROTALLI, Deceased. Susan M. DISCH and Lisa A. Disch, by their Guardian ad Litem and Charles Kyle Kenyon, Jr., Guardian ad Litem, Appellants-Petitioners, v. Angeline Bradanini BETZ, Peter Bradanini, Erma Trotalli Hall, Betty Bradanini Hanson, Albert Trotalli, Mary Jean Trotalli, Estate of Peter Trotalli, Robert Trotalli, Estate of Ellen Trotalli, First Wisconsin National Bank of Madison as Personal Representative in the Estate of Ellen Trotalli, Respondents.

Page 879

366 N.W.2d 879

123 Wis.2d 340

In the Matter of the ESTATE of Ellen TROTALLI, Deceased Susan M. DISCH and Lisa A. Disch, by their Guardian ad Litem and Charles Kyle Kenyon, Jr., Guardian ad Litem Appellants-Petitioners, v. Angeline Bradanini BETZ, Peter Bradanini, Erma Trotalli Hall, Betty Bradanini Hanson, Albert Trotalli, Mary Jean Trotalli, Estate of Peter Trotalli, Robert Trotalli, Estate of Ellen Trotalli, First Wisconsin National Bank of Madison as Personal Representative in the Estate of Ellen Trotalli Respondents.

No. 82-2068.

Supreme Court of Wisconsin.

Argued Jan. 30, 1985.

Decided April 30, 1985.

Charles Kyle Kenyon, Jr., Tomah, argued, for appellants-petitioners; Kenyon Law Offices, Tomah, on briefs.

Carlyle H. Whipple, Madison, argued, for respondents; Whipple & Southwell, S.C., Madison, on briefs.

ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed on July 6, 1984, 120 Wis.2d 673, 355 N.W.2d 253, affirming in part and reversing in part an order of the circuit court for Dane county, Moria Krueger, circuit judge.

The circuit court ordered that no compensation be paid to the guardian ad litem for either services rendered in appealing a circuit court's order construing the decedent's will or for work performed to collect payment of that compensation.

The court of appeals reversed the part of the circuit court's order which refused to allow the guardian ad litem compensation for services rendered in the appeal. The court of appeals concluded that an award of compensation is within the discretion of the circuit court and that the circuit court abused its discretion in failing to award compensation in this case. The court of appeals remanded the issue of reasonable compensation to the circuit court. We affirm this part of the decision of the court of appeals.

The court of appeals, with Judge Martha Bablitch dissenting, affirmed that part of the circuit court's order which denied the guardian ad litem compensation for his efforts in collecting his compensation. We reverse this part of the decision of the court of appeals.

This dispute about compensation payable to a guardian ad litem has its basis in a probate proceeding to construe the residuary clause in the will of Ellen Trotalli, deceased. The testatrix's will left the residue of the estate to ten named persons "per stirpes providing that they survive me." Two of the named residuary beneficiaries predeceased the testatrix. The words per stirpes would permit lineal descendants of the named residuary beneficiaries, here minor children, to take their deceased ancestor's share, while the words "survive me" would indicate that each of the named residuary beneficiaries must survive the testatrix to have any beneficial interest in the estate. Because of this ambiguity the personal representative of the estate filed a petition with the circuit court for construction of this clause. Attorney Kenyon was appointed guardian ad litem for the minors.

On April 8, 1980, the circuit court construed the will to decree a per capita distribution among the eight named surviving residuary beneficiaries. On May 30, 1980, the guardian ad litem filed an appeal to the court of appeals on behalf of the minors. The cause was remanded to the circuit court for clarification of its order, and the court of appeals issued two unpublished decisions, one filed June 16, 1981, and the other January 26, 1982, affirming the circuit court's construction of the will. 106 Wis.2d 769, 318 N.W.2d 25.

Thereafter the guardian ad litem petitioned the circuit court for payment of compensation in the amount of $8,374.68 ($9,475.83, less $1,101.15 which had been approved by the circuit court as compensation for services rendered prior to the appeal). The guardian ad litem's petition for compensation itemized the time spent and described the services rendered at the stated times. The petition further stated that if a hearing on the requested compensation were necessary, "an additional $375 per hearing date is requested."

Following a hearing, the circuit court refused to allow the guardian ad litem any compensation for services rendered in the appeal. The circuit court concluded that the payment of compensation to the guardian ad litem was a matter within the sole discretion of the circuit court under sec. 879.23(4)(d), Stats. 1981-82. The circuit court expressed several reasons for exercising its discretion to refuse all compensation: the appeal was not taken in the best interests of the minors; the prospect of the success on appeal was slight; and the guardian ad litem's requested compensation, which is payable from the estate, exceeded by almost one-third the amount which would have been payable to the minors if the appeal had been successful, the minors' interest in the estate being approximately $6,000.00.

The circuit court further concluded that the guardian ad litem could not recover compensation for the time he expended to collect his compensation since he did not have a specific contractual or statutory right for fees to collect a fee.

I.

The statutes relevant to compensating the court-appointed guardian ad litem in this case are secs. 757.48 [123 Wis.2d 346] and 879.23(4), Stats. 1981-82. Sec. 757.48 provides that "except as provided in sec. 879.23(4)," when a guardian ad litem is appointed by the court, the guardian ad litem shall be an attorney and "shall be allowed reasonable compensation for the services." (Emphasis supplied.) ¹ By the use of the usually mandatory "shall," sec. 757.48, on its face, requires that a guardian ad litem who is an attorney be allowed reasonable compensation. We must then turn to sec. 879.23(4) to which sec. 757.48 refers. The parties agree that sec. 879.23(4)(d), which applies in probate matters, governs this case. Sec. 879.23(4)(d) provides that "the guardian ad litem may be allowed reasonable compensation, and may be allowed reimbursement for necessary disbursements, the amount of which shall be set by the court and paid out of the estate." ² By the use of the usually permissive "may," sec. 879.23(4), on its face, authorizes, but does not require, the circuit court to grant the guardian ad litem reasonable compensation payable out of the estate.

The guardian ad litem urges us to read sec. 757.48 and sec. 879.23(4)(d) together to require the circuit court to award reasonable compensation when the guardian ad litem is an attorney but only to authorize the circuit court to award reasonable compensation when the guardian ad litem is not an attorney. ³ We, like the court of appeals, reject this proposed construction of the statutes.

On its face sec. 879.23(4)(d) applies uniformly to attorney and nonattorney guardians ad litem for minors and incompetents in probate proceedings. There is no conflict between the discretionary terms of sec. 879.23(4)(d) and the mandatory terms of sec. 757.48(1), because sec. 757.48(1) expressly excepts from its scope those cases governed by sec. 879.23(4)(d).

Because sec. 879.23(4)(d), not sec. 757.48(1), governs the compensation to the guardian ad litem in this case, we conclude that the circuit court was not required to award reasonable compensation to the guardian ad litem but that the award of reasonable compensation was a matter for the discretion of the circuit court. We agree with the court of appeals, however, for the reasons it set forth, that "where the guardian ad litem is a disinterested attorney, with no natural relationship to the ward, it is an abuse of discretion to withhold reasonable compensation for reasonable services performed by that attorney in the absence of exceptional circumstances not present in this case." Slip op. 10. As the court of appeals explained:

"The policy of affording court-appointed attorneys a just compensation for services they perform in assisting the court to function properly, and the special role of a guardian ad litem in that process, is well-established in this state. In Romasko [v. City of Milwaukee], 108 Wis.2d at 37-8, 321 N.W.2d at 125 [ (1982) ], the supreme court stated:

"[T]he appointment of a guardian ad litem is necessary for the validity of a court's order and is required to assure the integrity of its processes. The purpose in appointing a guardian ad litem then is not limited to the services that may be rendered to the ward. The guardian ad litem's service is rendered to the system of justice and, more specifically, to the particular court and the county in which an action is venued....

"[T]he guardian ad litem's overarching duty is to assist the court in its governmental function of seeing to it that justice is done to those who are defenseless and who are the objects of the special concern of government.

"Romasko held that the county must pay the reasonable fees of a court-appointed guardian ad litem for a minor defendant in a personal injury action. The supreme court relied on the related early cases of Carpenter v. County of Dane, 9 Wis. 249,

Page 274

(1859), the County of Dane v. Smith, 13 Wis. 654,

Page 585

(1861), which 'emphasized the necessity of paying lawyers for services rendered upon order of the court.' 108 Wis.2d at 39, 321 N.W.2d at 126. Smith invalidated a statute relieving the county from liability for such services as beyond the power of the legislature to enact, stating:

"Nor do we think that the legislature can leave with the courts the authority to order and employ, and at the same time destroy the implied promise to pay. The latter arises immediately out of the former, and is, in the law, so inseparably connected with it, that where the former exists the latter exists also. Unless the services are rendered gratuitously, which, under such circumstances, cannot be presumed, the promise of payment follows as of course.

13 Wis. at 658-59,

Page 589

, quoted in Romasko, 108 Wis.2d at 40, 321 N.W.2d at 127.

"Court-appointed attorneys act under an implied promise that t...