Hooker v. Hoskyns

• Decision Date: 27 May 1958
• Docket Number: No. 37430,37430
• Citation: 328 P.2d 404
• Parties: Tono L. HOOKER, Administrator of the Estate of Flora B. Barton, deceased, and Tono L. Hooker and J. D. Hooker, individually, Plaintiffs in Error, v. Chandos A. HOSKYNS, surviving co-special Administrator of the Estate of Flora B. Barton, deceased, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 404

328 P.2d 404

1958 OK 135

Tono L. HOOKER, Administrator of the Estate of Flora B.

Barton, deceased, and Tono L. Hooker and J. D.

Hooker, individually, Plaintiffs in Error, v. Chandos A. HOSKYNS, surviving co-special Administrator of

the Estate of Flora B. Barton, deceased, et al.,

Defendants in Error.

No. 37430.

Supreme Court of Oklahoma.

May 27, 1958.

Rehearing Denied July 30, 1958.

Syllabus by the Court

1. Attorneys employed by special administrators of an estate, with the approval of the county court, are entitled to the payment of a fee, from the estate, in the amount of the reasonable value of the service rendered, as determined and approved by the court.

2. The personal representative of an estate is personally liable for interest or costs accruing because of his failure to pay estate taxes which it was his duty to pay, when due, when ample funds were available for the payment of such taxes, and no reasonable justification for the failure to pay such taxes when due is shown to exist.

Appeal from the District Court of Tulsa County; Leslie Webb, Judge.

Appeal by administrator from judgment of District Court on trial de novo approving final account of special administrators, awarding fees to special administrators and their attorneys and refusing to surcharge special administrators. Affirmed in part and reversed in part with directions.

G. C. Spillers, G. C. Spillers, Jr., Tulsa, for plaintiffs in error.

Jim A. Rinehart, El Reno, Lewis C. Johnson, V. J. Bodovitz, Oklahoma City, Manatt, Knight & Knight, Milsten, Milsten & Morehead, Tulsa, for defendants in error.

WILLIAMS, Justice.

This is an appeal from a judgment of the district court of Tulsa County, upon trial de novo affirming a judgment of the county court of that county awarding fees to the special administrators of the estate of Flora B. Barton, deceased, as well as fees to the attorneys for such special administrators, and refusing to surcharge the special administrators with the interest allowed to accrue by the failure to pay federal and state estate taxes when due. Tono L. Hooker, administrator of the estate of Flora B. Barton, deceased, and Tono L. Hooker and J. D. Hooker, individually, as heirs of Flora B. Barton, deceased, are plaintiffs in error, and Chandos A. Hoskyns and Charles O. Barton, special administrators of the estate of Flora B. Barton, deceased, and their attorneys, are defendants in error. After the hearing of this cause, Charles O. Barton died, as did one of the attorneys involved, and the action was revived in the name of their respective personal representatives.

Flora B. Barton and Lucy H. Hooker were sisters. In March, 1945, Flora B. Barton deeded all of her real estate, except for one lot, to Lucy H. Hooker. Although the deeds were general warranty deeds without any exception or reservation, Flora B. Barton, after the execution and delivery of such deeds, continued in possession and control of such real property up until the date of her death on March 12, 1950. Lucy H. Hooker died on January 17, 1949, leaving as her sole and only heirs at law, the plaintiffs in error herein, Tono L. Hooker and J. D. Hooker. After the death of Flora B. Barton, Tono L. Hooker was appointed administrator of her estate. Tono L. Hooker was also appointed administrator of the estate of Lucy H. Hooker, his mother, the grantee in the above mentioned deeds. Thereafter certain other heirs at law of Flora B. Barton asserted that such deeds were void and filed an application to remove or suspend Tono L. Hooker as administrator of the Estate of Flora B. Barton, deceased, on the ground that his interest was adverse to that of that estate and that there was a conflict of interest between the estates of Flora B. Barton, deceased, and Lucy H. Hooker, deceased. On June 6, 1950, by agreement of the parties, the county court entered an order suspending Tono L. Hooker as administrator of the estate of Flora B. Barton, deceased, appointing Chandos A. Hoskyns and Charles O. Barton as special administrators of the estate, and appointing Milsten, Milsten, Johnston & Morehead and Manatt, Knight & Knight, and Felix Bodovitz as attorneys for the special administrators.

The special administrators, together with certain of the heirs of Flora B. Barton, thereafter instituted an action against Tono L. Hooker as administrator of the estate of Lucy H. Hooker, deceased, and Tono L. Hooker and J. D. Hooker, individually as her sole heirs at law, to cancel the above mentioned deeds, alleging that the same were void. This litigation, together with certain other litigation hereinafter referred to, was carried on for a period of some 5 years, and apparently involved a considerable amount of work, but ultimately resulted in a judgment in favor of the estate of Lucy H. Hooker, upholding the validity of the deeds, which judgment was affirmed on appeal in Hoskyns v. Hooker, Okl., 283 P.2d 1109. The special administrators were also involved in other litigation, including two actions the details of which may be found in the opinions in Barton v. Hooker, Okl., 283 P.2d 514, and Barton v. Hooker, Okl., 283 P.2d 1113, and two other actions in district court which were not appealed.

After all of the above mentioned litigation had been completed, and the mandates had issued in the cases appealed, Tono L. Hooker, on July 19, 1955, filed an application for reinstatement as administrator of the estate of Flora B. Barton, and for discharge of the special administrators. Thereafter, the county court entered an order reinstating Tono L. Hooker as administrator of Miss Barton's estate and ordering the special administrators to file a final account. The special administrators filed their final account in which they prayed that fees be set and allowed for themselves and their attorneys. To this final account, Tono L. Hooker, as administrator of the estate of Flora B. Barton, deceased, filed formal objections and prayed that the special administrators and their attorneys be denied compensation and further prayed that the special administrators be surcharged in a sum equal to the amount of interest which had accrued upon the estate taxes due the State and Federal Governments by virtue of failure to pay such taxes when due. After a hearing upon the matter, the county court made an order approving the final account of the special administrators and awarding them a fee of $500 each, and awarding their attorneys a fee in the total amount of $12,500, to be paid from the assets of the estate. The county court found that the estate tax matters had been badly handled but that such handling did not warrant surcharging the special administrators as prayed, and denied the application of plaintiffs in error to surcharge the special administrators for the interest upon estate taxes which had accrued by virtue of failure to pay such taxes when due. Upon trial de novo, the district court affirmed the judgment of the county court, and plaintiffs in error have perfected this appeal.

As their first proposition of error, plaintiffs in error assert that no attorney fees may be allowed in this case except for services used and useful to the estate of the deceased as a whole. In support of such proposition, plaintiffs in error cite the cases of Nichols v. Wallace, 155 Okl. 231, 9 P.2d 430; In re Baxter's Estate, 94 Mont. 257, 22 P.2d 182; In re Hamilton's Estate, 96 Mont. 551, 33 P.2d 258; Rowe v. Eggum, 107 Mont. 378, 87 P.2d 189; In re Schwint's Estate, 183 Okl. 439, 83 P.2d 161; Steger v. Gibson, Okl., 287 P.2d 687; and In re Parr's Estate, Okl., 287 P.2d 906, and contend that the cited cases definitely establish the doctrine that before an attorney is entitled to compensation in a probate proceeding, he must bring himself within the common fund doctrine, that is to say, that he must make a contribution to the welfare of the entire estate, otherwise he is not entitled to attorneys' fees. The cases cited, however, are all cases in which an attorney not employed by the personal representative of the estate involved attempted to recover an attorney fee from the estate, and so far as lawyers not employed by the personal representative of the estate involved are concerned, such cases do establish the doctrine contended for by plaintiffs in error. They establish no such doctrine, however, with regard to an attorney duly employed by the personal representative of the estate, with the approval of the county court, to represent such personal representative and the estate. In the case at bar, the attorneys in question were duly employed by the special administrators, and, in fact, were appointed by the county court, to represent the special administrators and the estate as a whole, and did represent such special administrators and the estate as a whole in numerous proceedings and actions over a period of several years. Under such circumstances, such attorneys are entitled to the payment of a fee in the amount of the reasonable value of the services rendered, which both the county court and trial court determined to be in the amount of $12,500, which amount in view of the record in this case we approve. We find no merit in the first proposition.

As their second proposition, plaintiffs in error assert that the special administrators should be denied fees, and surcharged because they negligently and carelessly failed and neglected to pay estate taxes as the same became due and payable. The factual situation upon which this proposition is based has not been heretofore set out herein, and must therefore now be detailed.

Flora B. Barton died on March 12, 1950. Under the pertinent U. S. and Oklahoma Statutes both the federal and state estate taxes became due and payable fifteen months after Miss Barton's death, or upon June 12, 1951, and if not paid by such date, bore interest from such date until paid. The special administrators were appointed and took charge of Miss Barton's estate on June 6, 1950,...