Funk v. Walker (In re Messer's Guardianship)
| Decision Date | 13 February 1945 |
| Citation | 246 Wis. 426,17 N.W.2d 559 |
| Parties | In re MESSER'S GUARDIANSHIP. FUNK v. WALKER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order and judgment of the County Court of Columbia County; Henry J. Bohn, Judge.
Affirmed.
In the matter of the guardianship of Louis Messer, incompetent.
These proceedings originated with a petition by Charles Funk, general guardian of Louis Messer, incompetent, filed February 16, 1942. Dorothy Walker was appointed guardian ad litem for the incompetent and opposed allowance of the account, and the matter was tried to the court which disallowed $2,691.33 of the fees claimed by the general guardian and surcharged his account with that sum plus three per cent annual interest. This judgment was entered on July 15, 1944. The general guardian appeals. The guardian ad litem cross-appeals asking review of the portion of the judgment providing for 3% interest instead of 6%. The matterial facts will be stated in the opinion. Bogue, Sanderson & Kammholz, of Portage, for appellant.
Dorothy Walker, of Portage, for respondent.
This case is a retrial of a proceeding in the same court, judgment in which case was reviewed by this court in Re Guardianship of Messer, 242 Wis. 66, 7 N.W.2d 584. Upon the former trial the lower court made an allowance to the general guardian based upon the statutory fee schedule applicable to trust companies. The amount allowed was $2,116.36. This court held without expressing any opinion as to the reasonableness of the allowance that the issues had not been tried; that the question to be tried was the reasonable value of the services under sec. 319.37, Stats., providing: ‘Every guardian shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and he shall also have such compensation for his services as the court in which his accounts are settled shall deem to be just and reasonable. * * *’ The court then laid down the factors which were to be considered in determining the amount of compensation.
In Restatement of the Law, Trusts, vol. 1, p. 740, § 242, it is said: ‘* * * Among the circumstances to be considered in determining the amount of compensation are: (1) the amount and character of the trust property; (2) the extent of the risk and responsibility of the trustee; (3) the character of the services rendered by the trustee; (4) the degree of difficulty in administering the trust; (5) the skill and success of the trustee in administering the trust; (6) the statutory rates of compensation for executors and administrators. * * *’
Reference is made to the former opinion for a statement of most of the facts, but a brief summary here may avoid the necessity of re-reference. Appellant was appointed general guardian in 1926, and the period under review is about fifteen years, during which the property was handled by him. At the time appellant took over the property totalled $27,349.38 appraised value. This included a farm appraised at $10,000, personal property $2,848.50, and other personal property consisting of stocks, bonds, notes, etc. At the end of the period the property was appraised at $48,934.97. There was an increase in value of capital during the fifteen years of nearly $22,000. The total gross income from the whole period from the trust during the fifteen years was $24,756.39. The court allowed the general guardian $2,717.60 as compensation.
The striking feature of the case from the standpoint of the general guardian has been the excellence of his performance. He handled this property during the depression with virtually or absolutely no loss to the estate and the estate appreciated over the whole period by some $22,000. It appears to be his contention that the excellence of his handling deserves a higher compensation than the court gave him, and his claim is for a fee of $5,408.93.
We have examined the record in this case carefully, and are of the view that the trial court canvassed and considered all of the elements laid down upon the previous appeal as bearing upon the reasonableness of the guardian's compensation; that there is not only evidence to sustain the trial court's conclusion, but that the findings are not against the great weight and clear preponderance of the evidence.
There was testimony that appellant's services were worth even more than he claimed. There was testimony that a minimum charge for trust companies operating in larger cities would have been some $400 more than the court allowed him. The...
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... ... of Jacksonville, Fla., 100 So.2d 807 (1958); In re Messer's Guardianship, 246 Wis. 426, 17 N.W.2d 559 (1945). Compare Weidlich v. Comley (2 Cir.) ... ...
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