Hackett's Estate, Matter of
Decision Date | 15 August 1977 |
Docket Number | No. 14112,14112 |
Citation | 9 Ill.Dec. 592,51 Ill.App.3d 474,366 N.E.2d 1103 |
Parties | , 9 Ill.Dec. 592 In the Matter of the ESTATE of Robert L. HACKETT, Deceased. Charles W. DOTSON, Successor Executor, and Attorney, Petitioner-Appellant, v. Montelle J. GREVE, Martha H. Jones, Genevieve Edwards, Mae Baer, Harold E. Hackett, Carl Hackett, Joyce Archibald, Opal Clapper, Montelle Hackett, Mildred Stephenson and Louise Hackett, who are all objectors to the Report of Sale and Leon Stephenson, Arthur Huser, James R. Huser, Helen Isenhower, Lenore Warren, Ruth Rodenbaugh, Leland Hackett, Effie Stephenson, and Delores Hackett, other Beneficiaries under the Will of Decedent, Defendants-Appellees. |
Court | United States Appellate Court of Illinois |
L. Stanton Dotson, Mattoon, for petitioner-appellant.
Nichols, Jones, McCown, Lincoln & Albin, Frank W. Lincoln, Lemna & Moore, Tuscola, for defendants-appellees; James F. Lemna, Emerson L. Moore, Tuscola, of counsel.
This case presents the question of whether a personal representative who is an attorney at law is entitled to compensation for both legal and nonlegal services performed.
This question has been often discussed but seldom litigated in recent years. Early Supreme Court cases hold that the representative is not entitled to compensation for legal services. A few more recent appellate court decisions allow compensation for both types of service. Text writers are not in agreement. (Compare Horner, Probate Practice and Estates, secs. 402 and 758, and James, Illinois Probate Law and Practice, sec. 336.5.) I.S.B.A. Professional Ethics Opinion No. 520 issued October 7, 1975 (64 Ill.B.J. 258) rules that an executor or administrator who is also an attorney at law is entitled to compensation for both. We agree with that opinion and deem it to properly interpret the present law of the state.
The will of Robert L. Hackett was admitted to probate in Douglas County in 1951. He devised 100 acres of farm land to his wife Lillian for life and directed that after her death the land be sold by his executor at public sale and that the net proceeds be distributed to his heirs per stirpes. Lillian Hackett was named and served as executor throughout the original administration of the estate. Charles Dotson was named successor executor and served throughout the original administration as attorney for the executor. The 100 acre tract was listed in the state inheritance tax return as having a value of $42,000. Mr. Dotson received a fee of $4000. The estate was closed in 1952.
Lillian Hackett died in November 1975. On May 10, 1976, Mr. Dotson petitioned the Circuit Court of Douglas County to reopen the estate and for issuance of letters to him as successor executor. The court granted that petition and a subsequent one asking for authority to sell the 100 acres at public sale. The land sold for $440,000. The executor then filed a final report in which he claimed a fee of $15,000 for legal services connected with the reopening of the estate, the sale and the distribution of the proceeds. Defendants, heirs of the testator, objected to the fees. At a hearing on the report and objections, the executor asked leave to amend the report to indicate that he requested compensation for nonlegal services as executor as well as for legal services. The court sustained defendants' objections ruling that the executor was entitled to compensation either for nonlegal services as executor or for legal services but not for both. The court heard evidence as to reasonable fees for legal work and then ordered the executor to amend the report to reduce the fees to $3000 and to make distribution. The executor, Charles Dotson, appeals from that order.
Because of our determination that the executor was entitled to compensation for both legal and nonlegal services, we rule that the court's refusal to allow the amendment requested by the executor and the resultant failure to consider both types of services to be reversible error.
In denying leave to amend, the trial court relied on the early Supreme Court cases of Willard v. Bassett (1861), 27 Ill. 37, and Hough v. Harvey (1873), 71 Ill. 72. In Willard v. Bassett the court affirmed a denial of fees for legal services rendered by an administrator and said:
In Hough v. Harvey an executor who was an attorney was sued in his representative capacity in a county other than the one where the estate was being administered. He then sought additional compensation in the probate proceedings for his services rendered in attending court, developing a defense and finding witnesses in the litigation in the other county. The Supreme Court ruled that he was not entitled to this compensation. Citing Willard v. Bassett, the court found the services to be legal in nature and thus not compensable. The court also stated that even if the services were not those of an attorney, no compensation could be allowed for the travels to obtain witnesses because to allow such compensation would encourage other executors to take unnecessary trips. The opinion indicated that if such a trip was necessary, the better practice would be to hire an agent to do it. The opinion followed the theory of Willard v. Bassett that services as a personal representative were charitable in nature and should not enable the representative to obtain financial gain.
No subsequent Supreme Court case has ruled directly upon the question. Nearly 70 years after Hough v. Harvey, the appellate court for the Second District in deciding In re Estate of Edwards (1942), 312 Ill.App. 645, 39 N.E.2d 72, approved an executor's fee which included compensation not only for the ordinary functions of the executor but also for legal services. The court noted that the performance of legal services by the executor saved money for the estate.
In ruling that the rationale of the early Supreme Court cases was not applicable, the appellate court said:
(312 Ill.App. 645, 650, 39 N.E.2d 72, 74.)
The recent case of In re Estate of Saperstein (1974), 24...
To continue reading
Request your trial-
Health Resources Foundation v. Department of Health
...such circumstances would be compulsory * * *." (Pinkstaff, 31 Ill.2d 518, 523, 202 N.E.2d 512, 515.) In In re Estate of Hackett (1977), 51 Ill.App.3d 474, 9 Ill.Dec. 592, 366 N.E.2d 1103, this court held that where an executor amended his final report to show a reduced fee and actually paid......
-
Slater v. Jacobs
... ... matter of this litigation, done other legal work for defendant Dr. Jacobs. Statements would be sent when ... The action sought dissolution of the partnership and partition of the real estate" upon which they conducted their practice, which real estate was in a land trust ... \xC2" ... ...
- Estate of Greig, Matter of
-
Songer v. State Farm Fire and Cas. Co.
... ... The court further found that the matter of attorneys fees was controlled by section 155 of the Illinois Insurance Code (Ill.Rev.Stat.1975, ... Jacobs (1st Dist. 1977), 56 Ill.App.3d 636, 14 Ill.Dec. 1, 371 N.E.2d 1054; Matter of Estate of Hacket (4th Dist. 1977), 51 Ill.App.3d 474, 9 Ill.Dec. 592, 366 N.E.2d 1103 ... ...