Leggett v. Wardenburg, Civil 4033

• Citation: 85 P.2d 989,53 Ariz. 105
• Decision Date: 03 January 1939
• Docket Number: Civil 4033
• Parties: ERA B. LEGGETT, as Administratrix With the Will Annexed of the Estate of JOHN E. LEGGETT, Deceased, Appellant, v. H. A. WARDENBURG, Appellee
• Court: Supreme Court of Arizona

85 P.2d 989

53 Ariz. 105

ERA B. LEGGETT, as Administratrix With the Will Annexed of the Estate of JOHN E. LEGGETT, Deceased, Appellant, v. H. A. WARDENBURG, Appellee

Civil No. 4033

Supreme Court of Arizona

January 3, 1939

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.

Mr George F. Macdonald and Mr. A. S. Gibbons, for Appellant.

Messrs Misbaugh & Fickett, for Appellee.

OPINION

LOCKWOOD, J.

This is a petition by H. A. Wardenburg, hereinafter called petitioner, against Era B. Leggett, as administratrix with the will annexed of the estate of John E. Leggett, deceased hereinafter called defendant, requesting the superior court of Pima county to fix an attorney's fee in said estate under the provisions of section 4049, Revised Code 1928. The matter was heard before the court at great length, and the following judgment was rendered:

"It is therefore ordered, adjudged and decreed that H. A Wardenburg do have and recover of and from Era B. Leggett, administratrix with the will annexed of the estate of John E. Leggett, deceased, the sum of Fifty-four Hundred ($5400.00) Dollars as and for attorney's fees for services rendered in said estate and that the said Administratrix shall forthwith pay said sum to the said H. A. Wardenburg," whereupon this appeal was taken.

There are nine assignments of error set forth under six propositions of law, which we shall consider as seems advisable.

The first objection is that the judgment upon its face is against the administratrix personally and that it cannot be determined whether it directs the payment of the sum therein set forth to be made out of her personal funds or out of the assets of the estate.

It may well be that the judgment might have set this forth more explicitly, but in view of the record there can be no possible question that it is against the defendant in her official capacity as administratrix, and not against her personally. Before the amendment of section 4049, supra, we held that so-called attorney's fees in an estate were merely expenses incurred by the administrator or executor on his personal responsibility, and that he might be credited in his accounts with the estate for a reasonable sum for that purpose, to be approved by the court, but that the attorney had no claim against the estate itself. Doubtless as a result of this decision, the statute was modified so as to provide for a hearing of this kind, in which the attorney might apply directly to the court for the allowance of a reasonable fee, and that the payment should be made from the funds of the estate. The whole record in the present case shows that this was the proceeding followed, and there is no question but that the judgment is against the administratrix in her official capacity, and is to be paid from the assets of the estate, and not otherwise. We think the form of the judgment is not such that it requires a reversal.

The second objection is that an order directing the payment of an attorney's fee must be reasonable and bear a direct relation to the amount involved, and the quality, kind and extent of the service rendered. This is, of course, true as an abstract proposition, and applied to the present case requires us to consider whether there is sufficient evidence in the record to justify the fee found due by the trial court. The testimony on all these points was greatly in conflict, so in determining the ultimate facts we are, of course, bound to assume that the court found all the facts necessary to support its judgment. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Ollason v. Glasscock, 26 Ariz. 193, 224 P. 284; DeMund Lumber Co. v. Franke, 40 Ariz. 461, 14 P.2d 256; Concrete Mach. & Sup. Co. v. Waara, 42 Ariz. 512, 27 P.2d 682. And if sufficient evidence appears in the record to support these presumed findings, we must sustain them. Warren v. Mosher, 31 Ariz. 33, 250 P. 354, 49 A.L.R. 1311. The material facts of the case may, therefore, be stated as follows:

John E Leggett was married to defendant in January, 1935, he then being a man well over eighty years of age, and she being many years younger. In that month Leggett made a will, whereby he left all of his estate, with the exception of a small legacy to another party, to defendant herein. In April of the same year he executed various conveyances disposing of all of his assets of every nature, except a very small amount of personal property, in favor of defendant, and shortly thereafter died. Just before Leggett's death he had been served with summons in a complaint seeking to recover the sum of $5,500, on account of legal services rendered by an attorney named Netherlin, and petitioner, who was a duly licensed and practicing attorney, was employed by defendant to advise her in the conduct of the affairs of the estate in all respects. He succeeded in settling the Netherlin matter for a comparatively small amount. When the will was offered for probate, a contest was filed against it which set up a prior will which left almost all of the property to parties other than defendant. The grounds of the contest were that the will of January, 1935, was not duly executed as provided by law; that the testator was incapable by reason of insanity and unsoundness of mind, and that defendant had practiced fraud, undue influence and duress upon Leggett to get him to make the will. The contest finally came before a jury, and its trial occupied a period of about eleven days, the jury finding in favor of the contestee, and sustaining the will of January, 1935. A...