Scanlon's Estate, In re

• Decision Date: 02 March 1956
• Citation: 2 Misc.2d 65,150 N.Y.S.2d 511
• Parties: In re SCANLON'S ESTATE. Matter of the Petition of the PUBLIC ADMINISTRATOR, Kings County, to render and settle his account as administrator of Catherine Scanlon, also known as Katie or Katie A. Scanlon or Scanlan, deceased. Matter of the Petition of OVEREND & VOGEL to fix attorneys' compensation for services rendered to Patrick Scanlon, now deceased, his executor, and Leo T. McCauley, Garth Healy and John M. Conway, Ancillary Executors of the estate of said Patrick Scanlon, deceased, in the estate of Catherine Scanlon, also known as Katie or Katie A. Scanlon or Scanlan, deceased, under Section 231-a of the Surrogate's Court Act. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 511

150 N.Y.S.2d 511

2 Misc.2d 65

In re SCANLON'S ESTATE Matter of the Petition of the PUBLIC ADMINISTRATOR, Kings County, to render and settle his account as administrator of Catherine Scanlon, also known as Katie or Katie A. Scanlon or Scanlan, deceased Matter of the Petition of OVEREND & VOGEL to fix attorneys' compensation for services rendered to Patrick Scanlon, now deceased, his executor, and Leo T. McCauley, Garth Healy and John M. Conway, Ancillary Executors of the estate of said Patrick Scanlon, deceased, in the estate of Catherine Scanlon, also known as Katie or Katie A. Scanlon or Scanlan deceased, under Section 231-a of the Surrogate's Court Act.

Surrogate's Court, Kings County.

March 2, 1956.

Overend & Vogel, Brooklyn, pro se.

Michael J. Mahoney, New York City, for John M. Conway as successor ancillary executor of the estate of Patrick Scanlon, deceased, testatrix' sole distributee.

MOSS, Surrogate.

The petitioners have instituted this proceeding under Section 231-a of the Surrogate's Court Act, as an incident to the accounting proceeding of the public administrator, and request the Court to fix their fees at $2,500 for legal services rendered to the fiduciaries of the estate of Patrick Scanlon, deceased, in the estate of the decedent herein. There seems to be no dispute about the facts. Catherine Scanlon, the decedent herein, died intestate in this county on August 17, 1940. Letters of administration were issued to the Public Administrator on November 13, 1941. The decedent left a gross estate consisting of personal property approximately of the value of $12,500. Patrick Scanlon, a paternal uncle and distributee of the decedent survived her. He resided in Ireland and died therein on March 5, 1941. His will was probated in Ireland and letters testamentary were issued to his son, Timothy. On May 10, 1943 Leo T. McCauley, Consul General of Ireland, was appointed ancillary executor of the estate of Patrick Scanlon deceased. Thereafter McCauley was transferred to another country by his government. He resigned as ancillary executor and on November 10, 1947 Garth Healy, Consul General of Ireland, was appointed as his successor. Garth Healy died on December 17, 1954. Thereafter John M. Conway, Consul General of Ireland, was appointed successor ancillary executor. As such fiduciary he has filed an affidavit in opposition to the petitioners' application. He raises no question as to the quantum of the services petitioners claim to have performed, but sets up a defense that petitioners' compensation should be computed on the percentage basis pursuant to their letter dated April 30, 1942 mailed to the Irish Consulate. The relevant part of the letter is as follows: 'For your record, we herewith confirm understanding as to our fees for representing you in the matter to be three to five per cent of the gross value of the estate turned over to you as Ancillary Executor, and, in addition, we are to be reimbursed for disbursements incurred.'

Petitioners do not deny the letter, but claim, without contradiction, that it was never thereafter referred to or considered by the parties. For that reason, they contend, the letter should not serve as the sole standard of evaluating their services. They further contend that the eventualities which occurred after the letter was mailed and the incidental exigencies which followed required them to perform additional and extraordinary services not foreseeable when they were retained by the original ancillary executor.

A summarized statement of such additional and extraordinary services include the following: accounting and discharge of the first ancillary executor upon his resignation; preparation of application for the appointment of one Sean Nunan as successor to McCauley sent to Ireland for execution and not used because Garth Healy was the new Consul General; preparation of application for the appointment of Garth Healy as successor ancillary executor; preparation of application for the appointment of John M. Conway, present Consul General, as successor ancillary executor; proceedings to compel the public administrator then in office to account; proceedings for the issuance of a commission to take testimony of witnesses in Ireland; protracted searches for missing witnesses who had disappeared to establish that Patrick Scanlon was the sole distributee of the decedent; many conferences; numerous correspondence; studies of questions of law presented in connection with the extraordinary services and other incidental and related services.

It is to be noted that the agreement referred to in petitioners' letter is contingent on the gross value of the estate turned over to the ancillary executor. An amount of speculation developed during the administration as to whether any of the ancillary executors were able to establish the status of Patrick Scanlon as a distributee and particularly the sole distributee of the decedent.

In order to apply a proper formula for evaluating the petitioners' services in the circumstance presented it will be necessary to review some of the authorities on the subject.

The late learned Surrogate Wingate of this Court in Matter of Abruzzo's Estate, 139 Misc. 559, 560, 249 N.Y.S. 72, 74, said: '* * * it is the obligation of the court, in so far as may be permitted by law, to see to it that clients, interested in proceedings before this court, treat their attorneys in a just and equitable manner.'

An attorney retained to perform legal services may be discharged at any time, with or without cause, without recourse to damages for the breach of contract. The attorney is relegated exclusively to an action or proceeding for the reasonable value of his services up to the time of his discharge. Reinwald v. Chemical Bank & Trust Co., 205 Misc. 335, 128 N.Y.S.2d 98, affirmed 283 App.Div. 966, 130 N.Y.S.2d 446, appeal denied 283 App.Div. 1079, 131 N.Y.S.2d 904; Application of Nittoly, Sur., 106 N.Y.S.2d 807, 808; ...