In re Warner's Estate
| Decision Date | 07 May 1948 |
| Parties | In re WARNER'S ESTATE. |
| Court | Florida Supreme Court |
Rehearing Denied June 8, 1948.
Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth judge.
W. F Maurer, of Ft. Lauderdale, for appellants.
Earnest Lewis & Smith, in pro. per., and Farish & Farish, all of West Palm Beach, and Rogers, Towers & Bailey, of Jacksonville, for executors, appellees.
This case grew out of the administration of the estate of Ellsworth C. Warner. Harold L. Warner, a son and one of the heirs to said estate was first represented in its administration by the law firm of Evans, Mershon and Sawyer, who later withdrew and were succeeded by Earnest, Lewis and Smith. After rendering the services for which they were employed, Earnest, Lewis and Smith billed Harold L. Warner for their compensation which was not paid, so they filed their petition in the probate court, alleging the non-payment of their fee, that it was earned by representing Harold L. Warner, Katherine Warner and Maurice Warner, another brother, in the administration of the estate of Ellsworth C. Warner.
The petition also pointed out that distribution of the estate was about to be made, that Harold L. Warner had assigned his legacy to the First National Bank of Minneapolis, a foreign corporation that the beneficiaries were all non-residents, and that petitioners would be without remedy if settlement was made and the assets of the estate transferred to another jurisdiction. On consideration of the petition the probate court directed the executors to withhold $2100 from the legacy payable to Harold L. Warner for payment of his counsels' fees. The legacy to Katherine Warner and Maurice Warner was allotted to them and their fee was paid, so they are no longer parties to the litigation. This order was entered February 1, 1946, and no appeal having been taken, as authorized by law, it became final. On April 15, 1947, the probate Court adjudicated a lien for attorneys fees in favor of Earnest, Lewis and Smith and directed the executors to pay them from the funds of Harold L. Warner in their custody. On appeal the Circuit Court held that the Probate Court was without jurisdiction to adjudicate a lien for attorneys fees, but directed the executors to hold the sum of $2500 to satisfy the claim of Earnest, Lewis and Smith when a judgment for it was secured in an appropriate action. This appeal is from the decree of the Circuit Court.
Several questions are proffered, but the pith of the controversy is whether or not, when a reputable attorney is employed by a non-resident legatee to represent him in the administration of an estate, and such legatee fails or neglects to pay said attorney for his services, may the Probate Court direct the executor to withhold sufficient funds from the legacy, and order them paid to the attorney for his services?
The parties will hereafter be referred to as 'Warner' and 'attorney.' There is no dispute as to Warner and the attorney having entered into the contract for the performance of the services, neither is it charged that the services were not well and faithfully performed. It is shown, on the other hand, that they were entirely satisfactory and that the fee charged was reasonable. The gist of Warner's contention is that the Probate Court is one of limited jurisdiction and that there is no authority under the law to pay attorney for the services rendered. Section 17, Article V of the Constitution relied on to support this contention is as follows:
'The County Judge shall have jurisdiction of the settlement of the estates of decedents and minors, to order the sale of real estate of decedents and minors, to take probate of wills, to grant letters testamentary and of administration and guardianship, and to discharge the duties usually pertaining to courts of probate.'
It is also contended that section 38 of the Probate Act, F.S.A. § 732.01, which paraphrases the provision of the constitution just quoted, does not authorize the payment of attorneys fees in administration proceedings. It is true that the constitution and the statute as referred to, do not in terms authorize payment of an attorney's fee for representing a legatee, but Section 734.01, Florida Statutes 1941, F.S.A., dealing with the same subject matter, authorizes the payment of attorneys fees for the 'care, management and settlement of the estate.' Moreover, since the decision in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, the doctrine of implied powers has been as much a part of the law of this country as the written law itself if the terms of the statute or the constitution relied on are such that we may reasonably assume that the power implied was in the legislative mind and that it is essential to effectuate the powers which are expressly granted.
It may be admitted arguendo that there is...
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State ex rel. West v. Gray
...supra; Getzen v. Sumter County, 89 Fla. 45, 103 So. 104; State v. Greer, supra; State ex rel. McKay v. Keller, supra; In re Warner's Estate, 160 Fla. 460, 35 So.2d 296. The first and fundamental rule in the interpretation of a constitution is to construe it according to the sense of the ter......
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State ex rel. West v. Gray
...v. Sumter County, 89 Fla. 45, 103 So. 104; State ex rel. Nuveen v. Greer, supra; State ex rel. McKay v. Keller, supra; In re Warner's Estate, 160 Fla. 460, 35 So.2d 296. The first and fundamental rule in the interpretation of a constitution is to construe it according to the sense of the te......
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Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A.
...and there is no reason whatsoever why they should be relegated to another forum to settle the controversy." In re Warner's Estate, 160 Fla. 460, 464, 35 So.2d 296, 298-99 (1948) (citations "A lawyer's compensation, like that of every man who labors, is his bread and butter. When his contrac......
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...771 (Fla.1958); In re Barker's Estate, 75 So.2d 303 (Fla.1954); Nichols v. Kroelinger, 46 So.2d 722 (Fla.1950); In re Warner's Estate, 160 Fla. 460, 35 So.2d 296 (1948); Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984). Where the entitlement to receive a fee and that it sh......