Goodwin's Ex'r v. Goodwin

• Decision Date: 05 February 1946
• Parties: GOODWIN'S EX'R et al. v. GOODWIN et al.
• Court: Kentucky Court of Appeals

192 S.W.2d 493

301 Ky. 526

GOODWIN'S EX'R et al. v. GOODWIN et al.

Court of Appeals of Kentucky

February 5, 1946

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Action by the executor and trustee under the will of George E Goodwin, deceased, and others for allotment of dower to Anne McDowell Goodwin, deceased's widow, who filed a counterclaim and cross-petition for rentals due the estate sale of properties thereof and allotment of her distributable share. From a judgment allowing King Swope an attorney's fee payable partly by defendant and the balance by plaintiff executor and trustee out of funds due the beneficiaries under the will after the widow's receipt of her dower share plaintiffs appeal.

Affirmed.

Stoll Muir, Townsend, Park & Mohney, of Lexington, for appellants.

King Swope, of Lexington, for appellees.

MORRIS Commissioner.

This appeal by the executor and trustee under the will of George E. Goodwin, against the widow and her counsel, involves the question of allocation of a portion of a fee allowed by the court. At the conclusion of a long drawn out litigation the chancellor adjudged that counsel be allowed a fee of $750, Mrs. Goodwin to pay $250, the balance to be paid by the fiduciary out of funds due the beneficiaries after the widow has received her dower share.

Appellants are not complaining that the fee is unreasonable, or that services were not rendered, but that such 'were primarily for the benefit of his client, Mrs. Goodwin, resulting in incidental advantage, if any, to the George Goodwin Estate.' It also argued that even if the legal services rendered benefited others interested, the estate could not be taxed further than to the extent of and in proportion to funds recovered before distribution, citing (as relied upon by appellee) KRS 30.200 and 412.070, and for appellant, Gernert v. Liberty Nat. Bank & Trust Co., 284 Ky. 575, 145 S.W.2d 522. We shall first take up the last contention.

The first section does not seem to have application to the case at hand, since it provides for a lien in favor of an attorney for money or property recovered in an action. There is no lien involved here, and the only application would be as to reasonableness of the fee, which is not to be judged alone by the amount recovered. The other section in substance provides, that in actions for settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or by tenants in common, if one of the parties in interest prosecutes for the benefit of others interested, and has been at trouble and expense, the court may allow reasonable compensation for expense and trouble in addition to the fees and costs, and the allowance shall be paid out of the funds recovered before distribution.

The argument of counsel seems to be that appellee's fee was to be based merely on the amount brought into the estate from rentals due the estate by Goodwin Brothers, who occupied some of decedent's property under a lease. The answer and counterclaim filed by Mrs. Goodwin set up the failure of the tenant to have paid certain rent, and whether absolutely necessary or not the effort brought into the hands of the executor rentals which had accrued. The record shows that the tenants came into court and paid $2,258.35, of which $1,110 was paid to Mrs. Goodwin, the balance to the executor, leaving any balance which might be due for the determination of the court.

The argument is, that since Goodwin Brothers admitted that it owed $1,158.36, the actual net recovery to the estate would be only $579.18, and if counsel's allowance should be paid the balance in executor's hands would only be $79.18. This argument goes rather to amount than allocation, and we can see no reason why the fee in this respect should not, as it was in the case of other counsel, who represented certain of the devisees, be chargeable to the funds in the hands of the fiduciary. No complaint seems to be made to the other allowance mentioned, payable out of the estate, except in the lower court.

When we come to the question as to whether any part of the adjudged fee should be chargeable to the estate, or the shares of other devisees, we have a little more difficult question, due perhaps to the pro and contra decisions of the court on the question, arising from the variance in facts in each particular case. As exemplary, one of the strongest cases cited by appellant is Thirwell's Adm'r v. Campbell, 74 Ky. 163, 11 Bush 163. A reading of that case would lead one to the conclusion that no matter how much service rendered by counsel of one interested party redounded to the benefit of the others, his claim could not be paid out of a common fund. It is not necessary to say more than that in recent years, that rule, if it were the rule, has been broadened. Another case, Lay v. Lay, 201 Ky. 93, 255 S.W. 1054, cited by appellant, held that where the suit was in form a suit to settle the estate, but in reality an action to recover on two contested claims 'and the services performed by attorneys were for the benefit of their clients,' fees were not allowable from a common fund. This is hardly the case here. One of the latest cited cases is Smith v. First National Bank of Williamson, 287 Ky. 609, 154 S.W.2d 705, 706. There the court allowed an attorney's fee of $500 taxed 'as * * * cost in this action.'

Counsel had brought a suit for recovery on certain notes adjudication of liens, and to set aside an alleged fraudulent conveyance. 'There was no prayer for settlement of the estate or anything incident thereto.' Appellee relied upon the line of cases...