Rutherfurd's Estate, In re

• Decision Date: 13 December 1974
• Docket Number: No. 73--72,73--72
• Citation: 304 So.2d 517
• Parties: In re ESTATE of John M. L. RUTHERFURD, Deceased.
• Court: Florida District Court of Appeals

Page 517

304 So.2d 517

In re ESTATE of John M. L. RUTHERFURD, Deceased.

No. 73--72.

District Court of Appeal of Florida, Fourth District.

Dec. 13, 1974.

Melvyn B. Frumkes, of Abbott, Frumkes & Alhadeff, Miami Beach, for executrix and sole beneficiary.

Bruce W. Parrish, Jr., of O'Connell & Cooper, West Palm Beach, as appellee.

FARRINGTON, OTIS, Associate Judge.

The Executrix of the Estate of M. L. Rutherfurd, deceased, appeals an award by the probate judge of an attorney's fee of $75,500 to the attorney for the executrix, which was allocated as $49,500 for ordinary services and $26,000 for extraordinary services. The executrix is the widow of the deceased and the sole beneficiary of the estate.

Appellant-executrix contends the probate judge erred in denying her request for a continuance of the hearing on the petition for allowance of attorney's fees until she could obtain local counsel to represent her at the hearing and that the fee awarded was excessive. We find that refusal of the probate judge to grant the requested continuance was an abuse of discretion under the peculiar circumstances of this case, and reverse. To clarify these peculiar circumstances and the issues involved at the hearing on the petition for attorney's fees, we will briefly review the probate proceedings.

The law firm of O'Connell & Cooper, P.A., commenced its legal services for appellant on April 15, 1971, by filing in the County Judge's Court of Palm Beach County, Florida, the petition of Katherine C. Rutherfurd to probate the will of John M. L. Rutherfurd, deceased. Phillip D. O'Connell, Sr., of that law firm assumed major responsibility for performing the legal services in the administration proceeding.

Numerous problems developed during the probate proceeding. Katherine C. Rutherfurd largely ignored her responsibility as executrix of the estate. Mr. O'Connell called and wrote letters explaining what was necessary to be done, but generally could not obtain her cooperation. Against the advice of her attorney, she attempted to give, and in fact effected delivery of, a valuable yacht, property of the estate which had never been distributed to her individually, to Florida Atlantic University. Litigation over the yacht resulted, which was settled by an agreed sale of the yacht with recovery for the estate of $95,426 as its share of the division of the proceeds. She never signed the inventory, although an inventory was filed which was signed only by Mr. O'Connell as her attorney.

A son of the deceased filed a petition to revoke the order of probate and remove Mrs. Rutherfurd as executrix, alleging defective execution or attestation of will, undue influence practiced by Mrs. Rutherford on the decedent, and incompetence of the decedent at the time of execution of the will; also, this son filed a petition to remove Mrs. Rutherfurd as executrix, alleging insanity, habitual drunkenness, failure to file an inventory, wasting and maladministration. At the suggestion of Mr. O'Connell, Mrs. Rutherfurd employed a personal attorney to protect her individual interests in these proceedings, although Mr. O'Connell actively participated on behalf of the estate. The petitions were disposed of by settlement after a four-day trial on the petition to revoke the order of probate was aborted by declaration of a mistrial, when the probate judge recused himself on motion made by Mr. O'Connell on behalf of the estate and the personal attorney on behalf of Mrs. Rutherfurd individually. The settlement provided for payment by Mrs. Rutherfurd personally of the sum of $110,000 to be paid to the children of the decedent by former marriage, and for dismissal of the petitions to revoke the order of probate and to remove the executrix. Mr. O'Connell arranged for distribution of monies from the estate to Mrs. Rutherfurd for her use in effecting this settlement.

Shortly after the probate was commenced, Mrs. Rutherfurd left Florida. Thereafter, Mr. O'Connell was unable to maintain direct communication with her; he was mainly required to contact her through her New York attorney, Mr. San Filippo, who apparently was fully authorized to act on behalf of Mrs. Rutherfurd in all matters involving the estate.

On October 26, 1972, O'Connell & Cooper, P.A., filed its petition for attorney's fees with certificate of service by mail on the executrix, Katherine C. Rutherfurd, and her New York attorney, Augustin J. San Filippo. On October 31, 1972, O'Connell & Cooper, P.A., filed a document entitled, 'List of Services Rendered for the Estate' over the signature of Phillip D. O'Connell, Sr., detailing the services rendered the estate. The final paragraph of this document which indicates the amount claimed reads as follows:

'The gross value of the estate for income tax purposes was $2,390,848.22. Two houses passed by operation of law, and these amounted to $328,137.19, leaving the amount of $2,062,711.03 as the amount to be used in determining the attorney's fees. In addition, I have calculated the minimum income of the estate during its administration to be $80,000, making a total of $2,142,711.03. Based upon the minimum fee schedule of the Palm Beach County Bar Association, the minimum attorneys' fees would be $49,540.00, plus a valuation for the additional extra-ordinary services.'

On November 13, 1972, O'Connell & Cooper, P.A., served Augustin J. San Filippo and Mrs. Katherine Rutherfurd by mail with notice of a hearing on the petition for allowance of attorney's fees scheduled for December 4, 1972.

The hearing was held on December 15, 1972, after being rescheduled by Mr. O'Connell at the request of Mr. San Filippo. When the hearing commenced, Mr. San Filippo appeared for the executrix and orally moved for a continuance.

As grounds for his request, Mr. San Filippo pleaded that he had been trying ever since the petition for attorneys' fees was initiated to obtain local counsel without success; that he had contacted over 15 lawyers in Palm Beach County and each one turned him down primarily because they had such a high regard for Mr. O'Connell, or were friends of Mr. O'Connell and just didn't want to appear against him. Mr. San Filippo stated that he also had high personal and professional regard for Mr....