In re Dehner's Estate

• Decision Date: 17 June 1941
• Docket Number: 45585.
• Citation: 298 N.W. 656,230 Iowa 490
• Parties: In re DEHNER'S ESTATE. v. GLYNN. HOGAN & LESS
• Court: Iowa Supreme Court

298 N.W. 656

230 Iowa 490

In re DEHNER'S ESTATE.

HOGAN & LESS v. GLYNN.

No. 45585.

Supreme Court of Iowa.

June 17, 1941

Appeal from District Court, Dubuque County; Hugh L. Stuart, Judge.

This is an appeal from the amount allowed claimants, attorneys at law, for extraordinary services claimed to have been rendered in the estate of Henry Dehner. The lower court allowed the sum of $200, and the claimants, Hogan & Less, have appealed. Opinion states the facts.

Reversed.

Smith & O'Connor, of Dubuque, and Hogan & Less, of Cascade, for appellants.

Gilloon & Chalmers, of Dubuque, for appellee.

MITCHELL, Justice.

Hogan & Less, attorneys for Cascade State Bank, executor of the estate of Henry L. Dehner, deceased, filed an application asking the court to allow them the sum of $1,702.15, as statutory attorney fees for ordinary services rendered by them to said executor, and the further sum of $1,500, as additional fees for extraordinary services rendered by said attorneys in the administration of said estate.

The administrator with will annexed filed objections to said application objecting to the amount and value of the ordinary services claimed therein, denying that any extraordinary services had been rendered by said attorneys, alleging that the fair and reasonable compensation for all ordinary services rendered by said attorneys in said estate was the sum of $683.20.

The lower court made an allowance for statutory compensation for ordinary services in the amount of $700, which has not been appealed from by either side, and in addition allowed $200 for extraordinary services. Hogan & Less, claimants, have appealed from the order of court fixing the amount for extraordinary services.

This controversy has been in this court on a former appeal. Glynn v. Cascade State Bank, 227 Iowa 932, 289 N.W 722. In the opinion in that case the facts and circumstances are set out, and we will not repeat them.

We are confronted with but a single question in the case at bar. That is as to the amount of the attorneys' fee claimants are entitled to for the extraordinary services performed. For no question is raised but that the services were extraordinary and no question is raised but that claimants are entitled to some pay for their services. The lower court found that the services were extraordinary, and allowed the sum of $200.

There is no dispute in regard to the law, it is conceded that the burden rests upon the appellants to prove the just and reasonable value of the services for which they claimed an extraordinary fee.

It is also admitted that an appeal in a probate matter from a decision of the court upon an application of an executor or attorney asking compensation for services rendered to the estate is not triable de novo.

In the case of In re Estate of Conkling, 221 Iowa 1332, 268 N.W. 67, 68, the court had before it an appeal from an order of a probate court allowing an executor's fee for extraordinary services rendered in the amount of $450. In affirming the judgment and decree of the lower court, this court said: " This is an appeal in a probate matter, and this court has held time and again that the findings of fact made by the lower court, if based upon sufficient competent evidence, are binding upon this court, as is the verdict of a jury, and will not be disturbed on appeal [citing cases]. We must therefore turn to the record to ascertain whether or not there was sufficient competent evidence for the lower court to enter the order that was entered. * * * The lower court was familiar with the entire proceeding in this estate. * * * There is sufficient competent evidence to justify the order entered, and it necessarily follows that the judgment and decree of the lower court must be, and it is hereby affirmed."

With these rules of law in mind, we turn to the record to ascertain the facts.

The extraordinary services claimed by the attorney firm of Hogan & Less, appellants herein, were performed in connection with proceedings for a compromise of the inheritance tax which has been levied based upon the appraisement made in 1930 under which appraisement a tax of $3,900 was levied. Additional interest had accrued until there was due under said levy about $5,000 when action was about to be commenced...