McNett v. Bonnifield (In re Leighton's Estate)
| Decision Date | 02 April 1929 |
| Docket Number | No. 38704.,38704. |
| Citation | 210 Iowa 913,224 N.W. 543 |
| Parties | IN RE LEIGHTON'S ESTATE. MCNETT & MCNETT v. BONNIFIELD ET AL. JAQUES, TISDALE & JAQUES v. BONNIFIELD ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wapello County; F. M. Hunter, Judge.
This case involves the claims of two firms of lawyers for services rendered in the administration of an estate. Certain heirs filed objections to said claims. The court allowed the claims in a less amount than was sought. Both parties appeal. The objectors will be designated as appellants, and the claimants as appellees. Affirmed in part; reversed in part.Smith & Work and Gilmore & Moon, all of Ottumwa, for appellants.
Seneca Cornell, McNett & McNett, and Jaques, Tisdale & Jaques, all of Ottumwa, for appellees.
Alvin C. Leighton died testate on July 1, 1917, leaving an estate valued at approximately $200,000. On August 28, 1917, his widow, Mary T. Leighton, was appointed executrix and trustee in accordance with the provisions of the will of the testator. She acted in such capacity until her death, November 11, 1924. On January 12, 1925, one Bonnifield was appointed administrator de bonis non with the will annexed. The firm of McNett & McNett and the firm of Jaques, Tisdale & Jaques each filed claims in said estate for an allowance for attorney fees for services claimed to have been rendered for said estate, and as proper charges in the administration of its assets. The appellants are heirs at law of the testator, and are sole beneficiaries of the intestate property of said estate. They alone contest the claims of said attorneys.
It appears that the will of the said testator was a complicated document. An action was brought by the widow for the purpose of construing the said will. The appellants herein were made parties to said action, and appeared therein and set up the claim that they were grandchildren of the said testator, being the children of one Henry Leighton, who, they contended, was the illegitimate son of the testator. Thereupon, by the consent of counsel, the question of the claimed heirship of the appellants was tried as though it were a separate case. The trial occupied a considerable length of time, and involved the taking of a large amount of testimony. As a result of the trial of this question, it was determined that the appellants were the grandchildren of the said testator, and, this being established, they became the beneficiaries of the intestate portion of his estate.
The suit for the construction of the will was afterwards tried out, and a decree entered therein. This action was appealed to this court, and the decree of the lower court was affirmed. Leighton v. Leighton, 193 Iowa, 1299, 188 N. W. 922. Some two years after the death of the testator the widow discovered a deed to certain valuable property in her tin box. Litigation arose over this deed, which subsequently came to this court, and the deed was upheld. Leighton v. Leighton, 196 Iowa, 1191, 194 N. W. 276. Growing out of the changed condition of the estate by reason of the discovery of said deed, and because of some other matters, proceedings were instituted for the adjustment of the federal inheritance tax. This entailed a hearing and the determination of said matter. The attorney fees claimed by the firm of McNett & McNett, in a general way, refer to services rendered in regard to four separate matters: (1) General services in the administration of the estate, drawing reports, counsel, etc.; (2) services rendered in connection with the suit for the construction of the will; (3) services rendered in the so-called heirship case; and (4) services rendered in the federal tax case. The services of Jaques. Tisdale & Jaques were rendered only (1) in respect to the construction of the will case; and (2) the heirship case.
[1] I. It is contended that the court could not allow attorney fees direct to the claimants,but only as an allowance to the executrix as part of the costs of administration. It is true that it is quite the proper method of procedure for an administrator or executor to report to the court the services he has rendered, and, if he has employed counsel, to show the reason therefor, and the services rendered and the amount claimed therefor, and that the amount to be allowed is determined on said report and allowed to the administrator or executor rather than direct to the attorney. Such is the general rule. 6 C. J. 734. Such was the rule in this state at one time. Clark v. Sayre (1904) 122 Iowa, 591, 98 N. W. 484. However, the Thirty-Eighth General Assembly, by chapter 391, in 1919 provided for an allowance and taxation of an attorney's fee “as part of the costs of administration of estates.” This statute as amended now appears in Code, §§ 12064 and 12065. We think the statute was intended to modify the former general rule. In terms the statute provides that allowances for actual, necessary, and extraordinary expenses or services may be made “to” attorneys of administrators or executors. We hold that claimants were entitled to present their claims direct to the court as claimants, and not necessarily through the channel of the report of the executrix.
[2] II. It is contended that sections 12064 and 12065 of the Code apply only to attorney fees for attorneys of administrators and executors, and not to attorneys for trustees. The statute does not in terms include provision for attorney fees for an attorney who renders services for a trustee. Trustees are frequently appointed by deeds or other instruments, and have no relation to estates of a decedent. Such trustees are frequently under the jurisdiction of a court of equity in the administration of the trust estate. In the instant case the widow was appointed executrix and trustee under the will. The services were all rendered in connection with the administration of the estate in the probate court, and not as a distinct matter pertaining only to the trust estate. We think the fees claimed are within the purview of the statute, under the facts of this case.
III. In regard to the services rendered in the general administration of the estate, no serious contention is made as to the amount allowed, or the liability of the estate for the fees claimed. The allowance was proper, and it is approved.
[3][4] IV. The services rendered in the three cases--(1) the construction case; (2) the heirship case; and (3) the federal tax case--were all in the nature of extraordinary services which, under proper conditions, may be allowed under Code, § 12065. With respect to the first two of these, in which both claiming firms were employed, it is contended that it was not necessary or proper to employ two firms to carry on the litigation and thus increase the expense. There is no suggestion of any ulterior or improper motive on the part of either the executrix or the attorneys in connection with said matter.
The facts are that Mr. William McNett, who we understand had been counsel for Leighton in his life, was employed by the widow, acting upon advice given her by her late husband. Mr. McNett became ill, and the widow employed Judge Tisdale, of the firm of Jaques, Tisdale & Jaques, to assist in the litigation. No suggestion is, or could be, raised as to the competency or ability of the members of the respective firms. The amount involved was large. The questions involved in the heirship case required an extensive examination of witnesses, some of them in distant parts. The construction case involved a most complex and cumbersome document. The opposing counsel were attorneys of prominence and ability. The executrix acted in good faith. The trial court approved of her action in employing both firms in said two cases, and we are not disposed to dissent therefrom upon the record as to the services required and rendered.
[5] V. It is contended that no attorney fees should be allowed for services in the appeal of the will construction case. It is virtually conceded that the attorney fees were properly allowed for services rendered in the trial of said case in the nisi prius court. In any event, we so hold. It is contended, however, that the executrix was not required to appeal the case to this court, and seek to reverse the order of the trial court in the matter of construction of the will, and that it was not proper for her to do so and incur expenses for attorney fees for which the estate could be held liable. It may well be said that the executrix, having brought an action for the construction of the will and having obtained an order of court construing the same, was not bound to appeal from such order. Certainly the executrix would be fully protected in administering the estate in conformity with the order of the court construing the will. Likewise it might have been proper for the executrix, as an officer of the court, to apply to the court for an order authorizing and directing the executrix to prosecute an appeal.
In this case the executrix prosecuted an appeal to this court from the order of the trial court construing the will, and the order of the trial court was affirmed. Under such circumstances, should an attorney fee be allowed for the services rendered on said appeal? Again we are confronted with a question of good faith. The executrix was acting for all parties interested in the estate in seeking a true and correct construction of the will of the testator. The case presented a very different and perplexing problem. The construction of the will was a most difficult task. The trial court, the late Justice Vermilionof this court, had spent much time and study upon it. Eminent counsel advised the executrix that it was desirable to have the opinion of this court on the matter of the proper construction of the will. The appeal was by no means frivolous. The question of the right of the executrix to appeal said case was raised in this court. In respect thereto we said (Leighton v. Leighton, 193 Iowa, 1299, 188 N. W. 922...
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