Izzo's Estate, In re, 18

• Decision Date: 25 November 1959
• Docket Number: No. 18,J,18
• Citation: 99 N.W.2d 625,358 Mich. 101
• Parties: In the Matter of the ESTATE of Jacqueline Louise IZZO, a Minor. John J. IZZO and Bessie Izzo, Petitioners and Appellants, v. John PURCELL and Ferdinand D. Heilman, Respondents and Appellees. une Term.
• Court: Michigan Supreme Court

Page 625

99 N.W.2d 625

358 Mich. 101

In the Matter of the ESTATE of Jacqueline Louise IZZO, a Minor.

John J. IZZO and Bessie Izzo, Petitioners and Appellants, v. John PURCELL and Ferdinand D. Heilman, Respondents and Appellees.

No. 18, June Term.

Supreme Court of Michigan.

Nov. 25, 1959.

Maiullo & Maiullo, Detroit, for appellants.

Otto & Otto, Saginaw, for respondents.

Before the Entire Bench.

VOELKER, Justice.

During July 1944 Jacqueline Izzo, then aged 6, was playing with some other children. She was wearing a cowboy suit made of some sort of synthetic material. This garment somehow caught fire; the child was badly burned; and as a result she lost both legs at the hips and became permanently crippled. Over three years later her father learned that a judgment for $60,000 had been obtained in New York on behalf of a child who had been severely burned while wearing a similar cowboy suit made and distributed by the same people. He thereupon visited the defendant law firm in Saginaw to discuss the situation. It developed that the Izzos were without funds to finance any litigation. After considerable discussion the attorneys suggested that they would handle the case upon a 50% contingent fee basis. The parents agreed and the child's mother accordingly petitioned the probate court to have herself appointed guardian of the stricken minor and her estate. About February 6, 1948 that petition was granted. The mother, acting as guardian, then petitioned the court for permission to retain an attorney upon the usual contingent fee basis, not naming it. That petition also was granted by an order entered February 11, 1948.

Subsequently the retained attorneys (with the aid of local New York counsel) filed suit in a New York federal court and, after the case was at issue there and ready for trial, obtained an offer of settlement in the amount of $97,500. On March 30, 1949 the probate court here entered an order approving that settlement, the order making no express reference to attorney fees. Thereafter for the first time came rumblings of discontent from the Izzos. On June 27, 1949 the probate court entered a so-called 'supplemental order' expressly approving the 50 percent contingent fee contract between the guardian and defendants, Heilman and Purcell, the retained attorneys, which contract had been entered into prior to and in accordance with the court's formal order of February 11, 1948. In the meantime the defendants had received their attorney fee and paid the New York correspondent counsel 1/3 out of it, pursuant to their original understanding with him, all of which the Izzos were aware. On July 11, 1949 the petitioner herein by her guardian (petitioner has since come of age) filed in the probate court a petition to set aside that supplemental order. This petition in effect was, and has been referred to by all parties as, a petition for a rehearing of the court's supplemental order. It was denied by the probate court on October 16, 1951. On November 11 of that year petitioner filed her appeal from that denial to circuit court.

Because the time for appeal from the original orders had long since elapsed, the circuit court felt that it could consider only one question: whether the probate court had abused its discretion in denying plaintiff's petition for rehearing. For a more complete discussion of the procedures and time limitations affecting probate appeals see our recent opinion in In re Cummings Estate, 355 Mich. 210, 93 N.W.2d 881.

The statute, C.L.1948, § 701.19 (Stat.Ann. § 27.3178 ), whereby probate courts are authorized to grant rehearings, makes such authority discretionary. The...