Estate of Zonas, In re

• Decision Date: 29 March 1989
• Docket Number: No. 87-1730,87-1730
• Citation: 42 Ohio St.3d 8,536 N.E.2d 642
• Parties: In re ESTATE OF ZONAS, Deceased.
• Court: Ohio Supreme Court

Page 8

42 Ohio St.3d 8

536 N.E.2d 642

In re ESTATE OF ZONAS, Deceased.

No. 87-1730.

Supreme Court of Ohio.

Submitted Jan. 10, 1989.

Decided March 29, 1989.

Syllabus by the Court

R.C. 2107.75, which provides that the trial court shall allow as part of the costs of the administration to be paid out of the estate compensation to the fiduciary and to the attorneys defending a purported last will or purported codicil, is applicable only to the fiduciary and the fiduciary's attorney. Neither the beneficiaries of a defeated will nor their attorneys are entitled to compensation under this statute.

Steven K. Zonas died on December 24, 1980, leaving a substantial estate. Two wills were presented for probate.

The first will which was admitted to probate has been referred to as the "Cincinnati will," because of its place of execution. According to this will, the majority of Zonas' estate would be put in a trust to benefit the sick and underprivileged of the village of Mexiates, Greece, the birthplace of Zonas.

A second will was subsequently offered for probate as a later will. It allegedly was executed in Chicago, and has been referred to as the "Chicago will." This will would have disposed of Zonas' estate by leaving the majority to friends and relatives of one Sam Sakellariou. The Chicago will was the subject of a will contest action.

The executor of the Chicago will, Ernie Doland, retained legal counsel (hereinafter the "Anninos group") in order to defend the will. Two beneficiaries under the Chicago will, nephews of Sakellariou, Dimitris Mallios and Nicholas Matsiotas, also employed attorneys (hereinafter the "Cissell group") to defend their purported interests under the will.

At the conclusion of the will contest trial, the jury determined that the Chicago will was a forgery. Subsequently both the Anninos and Cissell groups applied for attorney fees pursuant to R.C. 2107.75.

The trial court held that because the Cissell group had entered into a contingent fee contract with Mallios and Matsiotas, they were not entitled to attorney fees under R.C. 2107.75. The court reluctantly granted attorney fees to the Anninos group in the amount of $21,700.04, holding that it was bound to do so because of the case of Logeman v. Wagner (1966), 7 Ohio App.2d 48, 36 O.O.2d 124, 218 N.E.2d 761.

On appeal, the court of appeals overruled Logeman, supra, to the extent that Logeman held that an attorney fee award is mandatory in a will contest under R.C. 2107.75. See Trubulas v. Doland (1987), 39 Ohio App.3d 62, 528 N.E.2d 1313. The court of appeals held that the proper interpretation of R.C. 2107.75 should be that the probate court has discretion to determine the reasonable value, if any, of the executor's or attorney's services rendered in defending a purported will, based on all the facts and circumstances of a particular case. The court of appeals reversed the attorney fee award allowed to the Anninos group and remanded it for determination under the foregoing standard. The denial of attorney fees to the Cissell group also was reversed and remanded.

The Cissell group appealed to this court, ¹ contending that under R.C. 2107.75 they were entitled to attorney fees.

This cause is now before the court upon the allowance of the Cissell group's motion to certify the record.

Cissell & Komarek, James C. Cissell and Paul A. Komarek, Cincinnati, for appellants.

Frank & Goettke, Armin Frank, Blanchester, McCaslin, Imbus & McCaslin and Robert J. Imbus, Jr., Cincinnati, for appellee.

ALICE ROBIE RESNICK, Judge.

The sole issue before this court is whether an attorney who is employed by beneficiaries of a contested will which is later found to be invalid can recover attorney fees from the estate pursuant to R.C. 2107.75.

Prior to 1945 Ohio courts set forth when attorney fees in a will contest could be payable out of the estate of the decedent since there was no statutory authority. Ordinarily, the courts held that attorney fees would be recoverable only if the attorney hired by the executor or administrator of the estate successfully defended the will in a will contest. In Executors of Andrews v. His Administrators (1857), 7 Ohio St. 143, this court held that expenses incurred by an executor in defending a will in a will contest were recoverable only when the will in question was found to be valid. We determined that an executor did not have a duty to defend a will in a will contest and properly could put the burden of defense on the legatees and devisees under the contested will. We reasoned that if an executor had the duty to defend the will and thus was able to charge the defense expenses to the estate even when unsuccessful, this would result in " * * * the obvious and gross injustice of exonerating from the burdens of the contest those who alone had an interest in maintaining it, and who are adjudged to have been in the wrong, and casting the whole expense of a proceeding, alike against their rights and their interests, upon the innocent heirs at law." Id. at 152.

Even where an executor successfully defended a contested will, an award of attorney fees was not automatic. Courts looked to the circumstances surrounding the will dispute before allowing such fees. For example, the court in In re Albonowski (1937), 59 Ohio App. 234, 26 Ohio Law Abs. 154, 10 O.O. 515, 18 N.E.2d 124, found that a fiduciary who is partially or wholly successful in defending a will may get attorney fees provided that good faith and reasonable care by the fiduciary are shown.

If an executor had a personal interest in the will contest or if his actions were not beneficial to the estate, attorney fees generally were denied. See In re Estate of McAlpin (1897), 8 Ohio Dec. 654. The controlling factor concerning whether an executor will be reimbursed is "his personal interest or lack thereof in the result of the contest." In re Estate of Curry (1917), 20 Ohio N.P. (N.S.) 49, 53, 27 Ohio Dec. 485, 489. In Weir v. Weir (1906), 7 Ohio C.C. (N.S.) 289, 18 Ohio C.D. 199, it was held that where an executrix chooses to defend a will and does so in a disinterested effort, she may recover defense expenses if she is successful. Id. at 290, 18 Ohio C.D. at 200-201.

In 1945, G.C. 12082 was amended to address costs and charges against an estate where a will or codicil is determined to be invalid. That part of the statute underwent minor changes and is codified today as R.C. 2107.75:

"When the jury or the court finds that the writing produced is not the last will and testament or codicil of the testator, the trial court shall allow as part of the costs of administration such amounts to the fiduciary and to the attorneys defending such purported last will or purported codicil as the trial court finds to be reasonable compensation for the services rendered in such contest. The court shall order such amounts to be paid out of the estate of the decedent."

Appellants contend that R.C. 2107.75 mandates the recovery of their expenses incurred during the will contest. They claim that as attorneys for beneficiaries under the contested will, they fall within the statute's scope and purpose. The statutory language which provides that costs of defending an invalid will shall be allowed " * * * to the fiduciary and to the attorneys defending such purported last will * * *" is imprecise.

Only a few Ohio cases have dealt specifically with whether statutory attorney fees are recoverable by someone other than attorneys for the fiduciary. In Lindsey v. Markley (1950), 87 Ohio App. 529, 533, 43 O.O. 317, 319, 96 N.E.2d 311, 313, the court found that G.C. 12082 did not limit authorization of fees only to attorneys for the estate's legal representative, but that fees "shall be allowed 'to the attorney or attorneys defending such purported last will,' etc." However, in Doty v. Peters (1958), 106 Ohio App. 435, 442, 7 O.O.2d 181, 185, 155 N.E.2d 239, 245, R.C. 2741.04 (the immediate predecessor to the current R.C. 2107.75) was construed to mean that " * * * the executor and his attorneys may nevertheless be paid reasonable compensation out of the estate." (Emphasis added.)

Although appellants would construe R.C. 2107.75 to include attorneys for both executors and beneficiaries, we decline to apply such a broad reading.

Upon review, we find that other states which have statutes concerning attorney fees in a will contest generally limit recovery of such fees to the personal representative, executor, or administrator. Several states model their statutes after the Uniform Probate Code provision on attorney fees which states ².

"If any personal representative or person nominated as a personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred." Uniform Probate Code (1987), Section 3-720.

Other states, while they do not closely follow the Uniform Probate Code model, nevertheless limit recovery of attorney fees to the executor. See Official Code of Ga.Ann. Section 53-3-23 (1982) and N.Y.Surr.Ct.Proc.Act Section 2302(3) (McKinney 1967).

If an executor is unable to participate in a will contest, some statutes specifically allow fees to another person who represented the executor's interests and his attorney. ³

Another approach taken by several states is to order the contestant to pay attorney fees if the will in probate is affirmed. If probate is denied, such statutes also provide for attorney fees to be paid either by the party resisting the contest or by the estate, as the court directs. ⁴

A few statutes are broadly written and do not limit recovery of attorney fees to counsel retained by an executor or administrator. Texas, for example, merges the Uniform Probate Code model with a further allowance of attorney fees to "any person designated as a devisee, legatee, or beneficiary in a will or an alleged will"...