In re Schropfer's Estate

• Decision Date: 05 August 1938
• Docket Number: 44173.
• Citation: 281 N.W. 139,225 Iowa 576
• Parties: In re SCHROPFER'S ESTATE.[a1] v. SAYRS et al. (STARK et al., Interveners). MAHER & MULLIN
• Court: Iowa Supreme Court

281 N.W. 139

225 Iowa 576

In re SCHROPFER'S ESTATE.^[a1]

MAHER & MULLIN v. SAYRS et al. (STARK et al., Interveners).

No. 44173.

Supreme Court of Iowa.

August 5, 1938

Appeal from District Court, Hamilton County; Sherwood A. Clock Judge.

In this estate in probate appellees were appointed by the court as attorneys for proponents of decedent's will. Appellees filed application for allowance of compensation upon which the court entered an order allowing $3,000. Beneficiaries of the estate moved to set aside the allowance and for resubmission of the application. This motion the court overruled. The executors and the beneficiaries have appealed from both orders.

Reversed.

I. J Sayrs, of Webster City, for appellants.

Maher & Mullin, of Fort Dodge, for appellees.

F. J Lund, of Webster City, for interveners-appellants.

R. G. Remley, of Webster City, for Barbara and Marie Biernatzki.

RICHARDS, Justice.

On September 2, 1936, there was filed in the Hamilton District Court an instrument purporting to be the last will of Frank Schropfer, deceased. On October 10, 1936, objections to the probating of the instrument were filed by Barbara Biernatzki, based on alleged mental incapacity of decedent, and undue influence. On October 13, 1936, the law firm of Maher & Mullin presented to the court two applications prepared by them, signed by one of the persons named as executors, and by several beneficiaries. One application asked that the two persons named in the purported will as executors be appointed as special administrators. The other asked that the court appoint Maher & Mullin as attorneys for the proponents of the purported will. On the same day these appointments were made as asked. On February 1, 1937, the matter of allowance of the instrument to probate came on for trial, Maher & Mullin appearing as attorneys for proponents, and R. G. Remley as attorney for contestant. A jury was impaneled, opening statements were made, and proponents had not completed examination of their first two witnesses, i. e., the persons who were the subscribing witnesses, when counsel for contestant suggested to counsel for proponents that there be a settlement. A recess was had, the attorneys conferred, an agreement was made. The agreement was that the instrument be allowed to probate, and that the executors use $1,000 of the funds of the estate by paying first, the taxable costs of the hearing, and second, by paying the remainder of the $1,000 to contestant's attorney. And so, on the same day, the instrument was allowed to probate.

On April 12, 1937, Maher & Mullin filed in the estate an application in which they set out the services they claimed they had performed as attorneys for the proponents, and asked that the court determine the amount to be paid them as their compensation, and that the same be allowed as a claim of the first class and paid as a part of the costs and expenses of administration. The court fixed April 21, 1937, as the time for the hearing thereon and prescribed that 5 days notice be given to the executors or one of them. I. J. Sayrs, one of the two executors, accepted service. No notice was served on any other person. The application lay dormant until May 17, 1937. On that day Maher telephoned Sayrs that he, Maher, had arranged with the court that a hearing be had that morning upon the application and asked Sayrs to come to the court house. Sayrs complied with the request. From the court house Sayrs telephoned to some of the proponents, in order that they be informed that the hearing was about to be had. Shortly thereafter on that day the hearing was held. There were present Maher & Mullin, the executor Sayrs, and Remley, who had been attorney for the contestant. There were also in the court room two of the proponent-beneficiaries to whom Sayrs had telephoned. The executors filed no pleading or resistance to the application, nor was any evidence offered by the executors with respect to the reasonable value of the services the applicants claimed they had performed. The hearing was brief. On part of applicants it consisted of professional statements made by Maher & Mullin, and the testimony of their witnesses, these being attorneys who stated their opinions as to the value of the services, basing their opinions on the alleged services as set out in the application and as amplified in the professional statements made by Maher & Mullin. On part of the executors the two beneficiaries who had come to the court house testified, and professional statements were made by Sayrs and Remley. In his statement, Sayrs said that he never had had a talk with applicants about their fees, but had been informed by the Starks that Maher was going to be very reasonable about his fees; that he felt that Maher was entitled to a good substantial fee but felt $5,000 was excessive. In Remley's professional statement he said he agreed with Sayrs that Maher was entitled to a good fee. On May 19, 1937, the court entered an order allowing the applicants $3,000 as compensation for their services. On May 21, 1937, Anna Stark and other beneficiaries filed a motion that the order of May 19 be set aside and that the application be heard by the court on its merits. They also filed a resistance to the application. Maher & Mullin filed a resistance to the motion. Upon a hearing on June 28, 1937, the court overruled the motion of Anna Stark, et al. The executors and Anna Stark, et al., proponents, have appealed from the court's orders of May 19, 1937, and of June 28, 1937.

Upon the hearing on the motion of Anna Stark, et al., appellants introduced testimony tending to establish facts and circumstances, which if true, were material to and in considerable measure determinative of the amount of compensation to which Maher & Mullin may have been entitled. Appellants claim that these facts and circumstances, to which we will refer, were not divulged to the court, and that there was a concealment thereof by Maher & Mullin which was intentional and wrongful and fraudulent in character, and in any event violative of the complete fairness and honesty that must always be exhibited by an attorney toward his client. Appellants claim that by conduct of such alleged character appellees profited by obtaining an allowance greatly in excess of any amount to which they were entitled. Preliminary to relating the salient features of this testimony, and of that offered in resistance, we digress, to say that Barbara Biernatzki, contestant, and Anna Stark, one of the proponents, were the sisters and only heirs at law of testator. Each sister was bequeathed $500 and a life estate in 200 acres of land. But other provisions in the will make it evident that the children of Mrs. Stark, of whom there were several, are to benefit in larger measure than the one child of Mrs. Biernatzki. A successful contest would have resulted in the two sisters, and through them perhaps their children, sharing equally. The Biernatzkis as a family would have profited, the Starks would have received less.

Adverting to the testimony introduced on the motion to set aside the order of allowance, one admitted fact is that for a number of years prior to 1936 Frank Maher of the firm of Maher & Mullin had been the attorney and legal adviser of various members of the Stark family. It is also beyond controversy that these members of the Stark family had come to hold Maher in high esteem, and to have and feel complete confidence that he was fair and honest, and to be relied upon. This feeling of esteem and confidence especially characterized Max, one of the Stark family whom Maher had served as attorney for several years. It is also uncontroverted that, on account of this esteem and confidence, Anna Stark and several of her children including Max, upon learning that there would be a contest, directed Max to employ Maher as attorney to sustain the will. Maher & Mullin were residents of Ft. Dodge. The estate was pending in Hamilton County, at Webster City. When Max informed Maher, at Ft. Dodge, that a number of the Stark family desired to employ him, Maher inquired whether a special administrator had been appointed. Max answering in the negative, Maher said, " Why, Max, they will close the door in your face. This is big league stuff." Max said he did not know anything about that. Within a day or two Maher journeyed to Webster City, prepared the applications for appointment of special administrators and of Maher & Mullin as attorneys for proponents, and procured the appointments, as already stated. Max testified that Maher had been his trusted attorney for so many years that he deemed it wholly unnecessary to have any arrangement concerning the compensation of Maher & Mullin, believing that their charges would be fair and reasonable; but that his mother, Anna Stark, 78 years old, and some of the other members of the family, insisted that there be an understanding. Max testified that on that account he asked Maher, in October, 1936, to state what charges would be made, and that Maher answered that there was no merit in the grounds on which the contest was founded, that it would not come to trial, and that he, Maher, in such cases charged two, three, or four hundred dollars, and that in this case the charge for services out of court would not exceed $500. Max and his mother testified that he communicated this information to Anna Stark and others of the proponents.

On the morning of the hearing on the application of Maher & Mullin Sayrs informed Maher, at the court house, that some of the Starks were there and wanted to talk to Maher. Maher replied, " I have nothing to say to the Starks." Then Max sought out Maher, and asked whether he could talk to him a minute. According to Max's testimony Maher replied that there wasn't...