Maxcy's Estate, In re

• Decision Date: 02 October 1970
• Docket Number: No. 69--414,69--414
• Citation: 240 So.2d 93
• Court: Florida District Court of Appeals
• Parties: In re ESTATE of Charles V. MAXCY, Deceased. L. Elizabeth MAXCY, as Guardian ad litem for the minor child, Marivon Maxcy, and Irene H. Maxcy, widow of decedent and co-executor withdrawn, Appellants, v. CITIZENS NATIONAL BANK OF ORLANDO, as Executor of the estate of Charles V. Maxcy, deceased, Ward, Bradford & Oswald, as Attorneys for said Bank and estate, and H, James Brett, as Attorney for said Estate and for Irene H. Maxcy, one of the co-executors, Appellees.

Page 93

240 So.2d 93

In re ESTATE of Charles V. MAXCY, Deceased.

L. Elizabeth MAXCY, as Guardian ad litem for the minor child, Marivon Maxcy, and Irene H. Maxcy, widow of decedent and co-executor withdrawn, Appellants, v. CITIZENS NATIONAL BANK OF ORLANDO, as Executor of the estate of Charles V. Maxcy, deceased, Ward, Bradford & Oswald, as Attorneys for said Bank and estate, and H, James Brett, as Attorney for said Estate and for Irene H. Maxcy, one of the co-executors, Appellees.

No. 69--414.

District Court of Appeal of Florida, Second District.

Oct. 2, 1970.

Rehearings Denied Nov. 5, 1970.

Owen Rice, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for L. Elizabeth Maxcy as Guardian ad litem for the minor child Marivon Maxcy.

Fred T. Saussy, Tampa, for Irene H. Maxcy.

Gerald S. Livingston, of Ward, Bradford & Oswald, Orlando, for Bank, and Ward, Bradford and Oswald.

Melton & Beemer, Orlando, and Tom Whitaker, Tampa, for H. James Brett.

PIERCE, Judge.

This is an appeal from orders entered by the County Judge's Court for Highlands County, awarding 'ordinary' and 'extraordinary' fees to Citizens National Bank of Orlando (hereinafter 'the Bank') as co-executor; Ward, Bradfod & Oswald (hereinafter W-B-O) as attorneys for the executor Bank; and H. James Brett, as one-time attorney for Irene H. Maxcy, as co-executor; for services in connection with the probate of the estate of Charles V. Maxcy, deceased.

W-B-O and the Bank have heretofore filed joint motion to dismiss the appeal for lack of jurisdiction and Mr. Brett has filed motion to dismiss, sever and strike. Rulings on the motions were deferred, and in view of our disposition on the merits, rulings will be withheld.

After probate of the estate for all practical purposes had been completed except for costs of administration, the County Judge held hearings to determine allowance of fees to the personal representatives and their attorneys. The personal representatives-executors were the Bank and Irene H. Maxcy, the widow. Over the course of administration the widow Maxcy had three lawyers, Harry Lee, H. James Brett, and F. T. Saussy, ¹ in that order. The Bank at all times had its regular counsel, W-B-O.

Charles V. Maxcy, the deceased, was murdered in his home in Sebring on October 3, 1966. He left a will, dated May 14, 1964, appointing his widow and the Bank as co-executors, and colthing them with exemplary power and authority, without bond, to sell, manage, handle and otherwise deal in the property, real and personal, of his estate the same as he himself could have done, if living.

The Bank and the widow, although co-executors, were antagonistic toward each other from the time the will was admitted to probate on October 18, 1966. They could not agree on what lawyer, or firm of lawyers, would represent the estate and the co-executors. The widow was intent upon employing Mr. Harry Lee, while the Bank was equally intent upon employing its regular counsel, W-B-O-. So they 'solved' the dilemma by each employing separate counsel of choice. Accordingly, W-B-O has represented the Bank as co-executor continuously since October, 1966. The widow, however, has had a succession of attorneys, first employing Mr. Lee in October, 1966, terminating his employment in May, 1967, then employing Mr. Brett, who represented her until March, 1968, at which time she employed Mr. Saussy, who was her legal counsel until her termination as co-executor in October, 1968.

By order entered on June 14, 1967, the Court allowed Mr. Lee a fee of $10,000. The widow, Irene H. Maxcy, notwithstanding she was implicated in her deceased husband's violent death, was awarded a total fee of $15,000 prior to her resignation as co-executor, in installments of $5,000 and $10,000 respectively. These fees, though apparently agreed to, were, as we read the record, excessive in relation to their respective services in connection with the estate. They have already been paid, and by the passage of time, without any appeal or apparently any contest or objection by anyone, are now 'water over the dam'.

But the fees involved in the instant appeal, namely, the Bank for 'ordinary' and 'extraordinary' services as co-executor, and to Mr. Brett and W-B-O for 'ordinary' and 'extraordinary' services as attorneys for the co-executors, have not been paid and are directly before this Court for examination.

Two orders are here involved, both entered by the County Judge on June 23, 1969. One order granted a petition of Mr. Brett, filed on March 15, 1968, to withdraw as attorney for Mrs. Maxcy as co-executor, and awarding him $20,000 as 'ordinary' and 'extraordinary' fees for his services.

The other order allowed the Bank a total of $43,820 for co-executor's fees, broken down into $30,000 for 'ordinary' services and $13,820 for 'extraordinary' services. This $43,820, added to the $15,000 theretofore paid to the widow, aggregate the sum of.$58,820 to the co-executors for their services.

This latter order also awarded a total of $50,932 to W-B-O as attorneys for the Bank as co-executor, broken down into $25,000 for 'ordinary' services and $25,932 for 'extraordinary' services. These latter sums for the attorneys, added to the $10,000 paid to Mr. Lee and the $20,000 allowed to Mr. Brett, aggregate a total of $80,932 awarded for legal services to the estate. And it is assumed there will be subsequent claims for additional compensation for services rendered since November 30, 1968.

These fees allowed to the Bank and the lawyers reflect to us a surfeited liberality in the dispensation of estate assets, which after all are nothing more nor less than trust funds.

The two orders of June 23, 1969 presume to break down the fees allowed the Bank and lawyers for 'ordinary' services and 'extraordinary' services. It is unnecessary here to go into detail, and we do not intend to do so, upon each estate item or matter as to which the Bank and/or the attorneys allegedly performed services. Suffice to say that, in practically each instance, the sum or sums allowed is in excess of what in our opinion, in fairness to the minor...