Rorem's Estate, In re

• Decision Date: 21 September 1954
• Docket Number: No. 48521,48521
• Citation: 245 Iowa 1125,66 N.W.2d 292
• Parties: , 47 A.L.R.2d 1089 In the Matter of the ESTATE of Austin ROREM, Deceased. E. T. Rorem and Mark Rorem, Executors, Myrta ROREM, Mark Rorem, Mark Rorem, Executor, S. Dale Rorem, and Lydia Smith, Appellants, v. E. T. ROREM, E. T. Rorem, Executor, and Gaylord C. Rorem, Appellees.
• Court: Iowa Supreme Court

Page 292

66 N.W.2d 292

245 Iowa 1125, 47 A.L.R.2d 1089

In the Matter of the ESTATE of Austin ROREM, Deceased.

E. T. Rorem and Mark Rorem, Executors, Myrta ROREM, Mark Rorem, Mark Rorem, Executor, S. Dale Rorem, and Lydia Smith, Appellants, v. E. T. ROREM, E. T. Rorem, Executor, and Gaylord C. Rorem, Appellees.

No. 48521.

Supreme Court of Iowa.

Sept. 21, 1954.

John Barry, of LaJolla, California, and Lundy, Butler & Lundy, of Eldora, for appellants.

Gerald O. Blake, of Jewell, and Phelan, Karr & Karr, of Webster City, for E. T. Rorem, as executor and individually, appellee.

GARFIELD, Chief Justice.

This is a probate matter involving several questions. The applications, answers and other papers which state the issues fill 180 pages of the record. The principal contest is over the attempt of one executor, Mark Rorem, to charge his coexecutor, Elmer T. Rorem, individually with fees for the former's attorneys and over Mark's resistance to the allowance of fees to Elmer and his attorney. After a hearing the trial court allowed part of the fees claimed by Mark for his attorneys and by Elmer and his attorney but refused to charge Elmer with Mark's attorney fees. Mark as executor and remainderman, his mother (life tenant), a brother and sister (two other remaindermen), have appealed.

Austin Rorem died August 15, 1949, leaving his widow Myrta, four sons (Elmer, Gaylord, Mark and Dale), and a daughter (Lydia). Elmer and Gaylord are sons by a prior marriage. Austin left 320 acres of land in Hamilton county and other property. His will provides Myrta shall have the use and income from his estate for life and the right to use such part if any of the corpus as shall be reasonably necessary for her comfortable care, support and maintenance. Whatever properties may remain in the estate at the time of Myrta's death shall vest in such heirs of Austin's body as may then survive. The will was admitted to probate. Elmer and Mark (half brothers), the nominees, were made executors.

In June, 1951, Gaylord, a son by the first marriage, commenced a contest of the will in Hardin county where the will was probated, alleging mental incapacity and undue influence by Myrta, and an equity action in three counts in Hamilton county where the land lies claiming Gaylord and his brother Elmer were equitable owners of the land and seeking in count 3 an accounting for funds in Austin's hands claimed to belong to Gaylord and Elmer. The will contest was dismissed with prejudice four days before trial was to commence. The equity action was tried, relief was denied and we affirmed the decree. Rorem v. Rorem, 244 Iowa 980, 59 N.W.2d 210.

Elmer as coexecutor employed Mr. G. O. Blake of Jewell as his attorney. Mark with his mother, Dale and Lydia employed as their attorneys Lundy, Butler & Lundy of Eldora and John Barry of LaJolla, California. Gaylord's attorneys in the will contest and equity action were Phelan, Karr & Karr of Webster City. Mr. Blake was also an attorney for Gaylord in the equity action.

In the present action Mark asks that fees of $13,500 be allowed his attorneys from estate funds and Elmer be directed to reimburse the estate therefor on the ground Elmer maliciously conspired with Gaylord to loot the estate by bringing the will contest and the equity action with full knowledge there was no merit therein. Elmer in his final report as an executor asks that he be paid $1,175 fees and his attorney Mr. Blake be paid fees of $5,300 as claimed by him. Mark, his mother, Dale and Lydia resist allowance of fees to Elmer on substantially the grounds urged in support of the claim he be charged the $13,500 for Mark's attorneys. They also object to allowance of fees to Mr. Blake on the grounds he represented interests adverse to the estate in the equity action, well knowing it was not meritorious, and he orally agreed to probate the estate for $200. Other issues will be referred to later.

The trial court allowed fees of $8,833.33 for Mark's attorneys but, as stated, refused to charge Elmer with any part thereof. Elmer was allowed $750 and Mr. Blake $1,500. Later mention will be made of decisions on other questions.

I. Mark and the other appellants first assign as error the court's failure to allow the full $13,500 claimed for Mark's attorneys.

It is important to keep in mind this is a probate action not reviewable de novo here. The trial court's findings have the force and effect of a jury verdict and are conclusive upon us if supported by substantial evidence. Rule 334, Rules of Civil Procedure, 58 I.C.A.; In re Lorenz' Estate, 244 Iowa 338, 339, 56 N.W.2d 884, 886, and citations; In re Pierce's Estate, 245 Iowa ----, 60 N.W.2d 894, 899. Since this controversy involves fact questions to a considerable extent it is apparent the familiar rule just stated places a rather heavy burden upon appellants.

In re Estate of Myers, 238 Iowa 1103, 1106, 1107, 29 N.W.2d 426, 427, 428, reviews a probate order allowing fees to an administrator's attorney. After considering earlier precedents on the subject these rules are stated and citations for each of them given. We have frequently said such a proceeding as this is reviewable on assignment of errors and not de novo in this court. We will interfere with a probate order regarding attorney fees that lacks adequate or sufficient support in the evidence. The amount allowed by the probate court will be reduced by us if clearly excessive. It would seem to follow that such an allowance will be increased by us if manifestly inadequate, since we should treat claimants for attorney fees as fairly as we do objectors to such claims. We have frequently held the trial court has considerable discretion in the allowance of compensation to administrators and their attorneys. But the exercise of such discretion must be reasonable. The burden of showing the services rendered and the value thereof rests upon the claimant. See also In re Trust of Larkins, 243 Iowa 322, 326, 327, 51 N.W.2d 396, 398, which cites the Myers case.

We find insufficient basis for increasing the trial court's allowance for Mark's attorneys. The widow first consulted Lundy, Butler & Lundy about a month after testator died. When Mr. Barry was first consulted does not appear. Apparently he lived in Oklahoma, where some of Myrta's side of the family reside, before moving to California. Myrta, her two sons and a daughter evidently employed the Lundy firm and Mr. Barry to look after their interests in the estate which, including realty, was of the approximate value of $100,000.

Myrta, Mark, Dale and Lydia made separate written contracts with the Lundy firm and Mr. Barry dated October 8, 1952. This was three years and one month after the will was probated. The equity action had then been tried and decided in the district court and was pending here upon appeal. The will contest had been dismissed March 19, 1952. The fees claimed for the Lundy firm and Mr. Barry are for their services in these two cases. The contract with Lundy, Butler & Lundy states the original employment was at $15 an hour and charges then exceeded $4,600 but Myrta, her sons and daughter agreed to pay the firm $5,000 for all their services, including such applications as the firm should deem proper to charge Elmer or the estate with all legal expense.

The contract with Mr. Barry fixes $5,500 as the amount to be paid him plus $2,000 for defending the appeal in the equity action. Barry was to pay the Lundy firm half this last amount.

There is evidence the Lundy firm put in altogether 568 hours pursuant to their employment by Myrta, et al. Its statement says briefing was done on 48 different days. Some of this was long after we decided the equity case and appears to have been in connection with the controversy now before us. The showing as to what Mr. Barry did is fragmentary and unsatisfactory. It consists largely of this narrative appended to the statement submitted by the Lundy firm: John Barry participated in two or more conferences in the office, was present and participated in each of the trials, prepared the first draft of the brief in the supreme court and furnished citations of authorities. The statement in appellants' brief that Mr. Barry participated in the will contest and equity action trials is obviously incorrect since there was no trial of the will contest.

Mr. Leming, an attorney from Hampton, expressed the opinion the services of the Lundy firm and Mr. Barry were of the value of between $15,000 and $20,000. This was on the basis of $20 an hour for all time spent. As we have indicated, there is no showing of the time spent by Mr. Barry. Then too the Lundy firm had agreed to work for $15 an hour. The difference between $15 and $20 an hour for the 568 hours the Lundy firm says it put in is $2,840.

The court was not bound to accept Mr. Leming's opinion as a verity. Obviously it purports to be only an approximate estimate. Van Gorden v. Lunt, 234 Iowa 832, 840, 13 N.W.2d 341, 345, and citations; State ex rel. Weede v. Bechtel, 244 Iowa 785, 834, 56 N.W.2d 173, 200, and citations.

Nor, as appellants conceded upon the trial, was the court required to allow the amounts they had contracted to pay their attorneys. The attorneys were entitled only to a 'just and reasonable' allowance. Section 638.25, Code, 1954, I.C.A.; In re Estate of Munger, 168 Iowa 372, 150 N.W. 447, Am.Cas.1917B, 213, Ladd, J.; In re Estate of Murphy, 209 Iowa 679, 684, 228 N.W. 658; Glynn v. Cascade State Bank, 227 Iowa 932, 937, 289 N.W. 722. See also State ex rel. Weede v. Bechtel, supra, 244 Iowa 785, 833, 56 N.W.2d 173, 199; In re Schield's Estate, Mo.Sup., 250 S.W.2d 151, 156.

The trial court found Lundy, Butler & Lundy and Mr. Barry were entitled to $3,500 for preparing to defend the will contest (dismissed before trial), and their services in the equity action, insofar as they benefited the estate, were reasonably worth $5,333.33. As stated, the total amount charged to the estate was...