King v. Keith, 2 Div. 292

• Decision Date: 26 June 1952
• Docket Number: 2 Div. 292
• Citation: 60 So.2d 47,257 Ala. 463
• Parties: KING et al. v. KEITH.
• Court: Alabama Supreme Court

Page 47

60 So.2d 47

257 Ala. 463

KING et al. v. KEITH.

2 Div. 292.

Supreme Court of Alabama.

June 26, 1952.

Harry W. Gamble, Selma, and Sam M. Johnston and Johnston McCall & Johnston, Mobile, for appellant King.

Harold I. Baynton, Asst. Atty. Gen., Percy G. Fountain, U. S. Atty. So. Dist. Ala., Mobile, and Jas. D. Hill, Geo. B. Searls, and Joseph W. Laufer, Attys. Dept. of Justice, Washington, D. C., for appellant the Attorney General of United States.

John W. Lapsley, Selma, for appellee.

SIMPSON, Justice.

This record has been read and considered in general consultation and the court has concluded to this result.

The appeal challenges the decree of the circuit court, in equity, allowing appellee Keith fees and expenses for services rendered by him as an attorney at law to the estate of Alice DeVane King, deceased.

The appellants are Frederick D. King, individually and as administrator cum testamento annexo of said estate, and J. Howard McGrath, Attorney General of the United States, as successor to the Alien Property Custodian. Since submission, James P. McGranery, present Attorney General of the United States, has been substituted for McGrath, who recently resigned that office.

The court awarded appellee a fee of $40,000 for legal services rendered the estate for the common benefit of the beneficiaries under the will for defending and establishing its validity as the last will and testament of said Alice DeVane King, deceased; $5,000 as attorney's fees for legal services rendered appellant King as said administrator cum testamento annexo from the time of his appointment as such, to wit, June 15, 1948, to the time of Keith's discharge as the administrator's attorney May 13, 1950; and $5,187.39 for expenses incurred by appellee incident to the rendition of such legal services; all of the aforesaid allowances being ordered credited with $7,500 previously paid by the administrator to appellee as expenses and $1,000 and $1,250 previously paid to appellee on attorney's fees.

To break down these figures, specifically the court was of the opinion that $40,000 was a reasonable attorney's fee for legal services rendered the estate in defending and establishing the validity of the will and in having the same duly admitted to probate; $5,000 as a reasonable fee for legal services rendered by said attorney to the administrator C. T. A., less $2,250 already paid; expenses in connection with those services of $5,187.39, requiring a refund of $2,312.61 from the $7,500 already paid the attorney for expenses.

The decree was rendered after a hearing of a petition filed by appellee against administrator King in which proceeding King, individually, and the Attorney General of the United States, as successor to the Alien Property Custodian, intervened and filed answers. Each phase of the decree is challenged as error. Cross-assignments of error challenge the part of the decree reducing the amount of the allowable expenses and ordering a refund.

A brief resume of the facts will be appropriate to illustrate the type of services rendered and the expenses incurred in that connection. Alice DeVane King, a native of Alabama, died in Heidelberg, Germany, June 21, 1941, owning a small farm in Louisiana and considerable real property located in Dallas and Hale Counties, Alabama. In 1940 she executed a will in Heidelberg, leaving her estate, except for some small minor bequests, in equal parts to two devisees, one, the appellant Frederick D. King, a resident citizen of New Orleans, Louisiana, and the other one Marie Schmitter, a resident and national of Germany. Subsequent to appellee's employment and during the progress of the proceeding, the Attorney General of the United States, pursuant to authority of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. and various executive orders promulgated thereunder, executed vesting orders whereby Mrs. Schmitter's interest in the estate and properties devised to her was expropriated and vested in him, as successor to the Alien Property Custodian of the United States. Appellant King, the other beneficiary, had retained appellee, a practicing attorney of Selma, Alabama, in 1941, soon after testator's death, to represent and protect his interest in connection with the matter and to have the will probated in accordance with the laws of Alabama. Thereafter appellee rendered various legal services in that connection, finally succeeding in obtaining the probate of the will and in having said King appointed as administrator with will annexed in June of 1948. On May 13, 1950, certain disagreements arose between administrator King and appellee and King discharged him as his attorney. Following his discharge, appellee filed his petition in the probate court of Dallas County for attorney's fees and expenses and thereupon, on petition of appellants, the cause was removed to the circuit court in equity where, after hearing, the aforementioned decree was rendered.

The original employment of appellee was, as stated, by King individually. The terms of this employment were subsequently reduced to writing, whereby it was agreed that the compensation of appellee should be contingent upon his establishing the will and obtaining its probate, the basis of such compensation being one-third of the gross value of the estate, plus expenses, including those incurred as travel, entertainment, telephone, lobbying, and such other costs as are ordinarily incurred in connection with such a probate proceeding; in the contract it was provided that in the event it should be necessary that the fees and costs be proved in court, King agreed to use every effort to have them approved on the basis of the contract. Appellee, however, is not claiming under this contract, but on the general principle that an attorney at law is entitled to a reasonable fee for legal services rendered by him in establishing the validity of a will which resulted in common benefit to the estate, together with all reasonable costs in that connection. Code 1940, Tit. 46, § 63; Kimbrough v. Dickinson, 251 Ala. 677, 39 So.2d 241; Wilkinson v. McCall, 247 Ala. 225, 23 So.2d 577; Penney v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782, 22 A.L.R.2d 1430; Brown v. Olsson, 254 Ala. 695, 49 So.2d 564.

From the period of his employment in June of 1941 until the probate of the will in 1948, the services rendered by this attorney were laborious, painstaking, persistent, skillful and unique. Briefly, they included contest of an application of one of Miss King's heirs for letters of administration; contest of an application to probate a previous will; contest of a bill in equity of another heir to sell land for division and to remove as a cloud on the title the purported will made in Germany; contest of heirs of the German will, which was finally defeated in a jury trial in the circuit court of Dallas County and that judgment affirmed on appeal to this court, reported in Johnston v. King, 250 Ala. 571, 35 So.2d 202; mandamus to the judge of probate to require him to accept the will for probate and grant letters of administration to King. By reason of the then existing war between the United States and Germany, the original German will could not be obtained and it was conceived by the attorney that under existing law there was no provision in Alabama authorizing the probate of a certified copy of the German will and, not knowing how long the war might last, he sought legislation to alleviate all doubt. It was therefore through the efforts of appellee that statutes of this state were amended to authorize the probate of such a copy and to toll the statute of limitation for the probating of such will pending the duration of the war. The successful efforts of appellee to that end required the attendance on two legislative sessions before amendments to existing statutes were finally adopted. Though the original will was eventually obtained and presented on trial, this could not have been foreseen pending the efforts of appellee in connection with his services in obtaining the passage of the amendments. The contest of the will was upon several grounds: incompetency, undue influence and illegal execution; and though it was held by this court that the case presented purely a legal question of whether the will was duly executed, it was necessary for appellee in preparation of the case for trial to be prepared to meet the other grounds of contest.

The details involved in the execution of this will are referred to in our decision in Johnston v. King, supra. Much research into the law was necessary to determine its status. Alice King, at the execution of her will, was paralyzed and could not speak. The attesting witnesses signed on a separate paper in a proceeding under German law. After considerable effort, the appellee succeeded in locating the attesting witnesses and after procuring an order of court, arranged to go with opposing counsel to Heidelberg, Germany, to take depositions of these German witnesses, which required an absence of about sixty days from his office in Selma. Before proceeding to Germany to take these depositions, he had already had prepared tentative interrogatories to each witness, containing several hundred questions. A former German lawyer was employed and these interrogatories were sent to Germany for the purpose of obtaining information as to the exact status of the execution of the will in Germany and to fully inform appellee with respect to the testimony of the witnesses. These depositions were returned and translated. Thereafter formal interrogatories were presented in the circuit court of Dallas County, where the will contest was pending; opposing counsel crossed these interrogatories at length and appellee and opposing counsel then proceeded to Germany for the purpose of taking the depositions of the attesting witnesses. Appellee was indefatigable in his efforts to accomplish the probate of the will. Toward the...