Tierney's Estate, Matter of

• Decision Date: 30 October 1975
• Docket Number: No. 124,124
• Citation: 70 Wis.2d 438,234 N.W.2d 357
• Parties: In the Matter of the ESTATE of Patrick TIERNEY, also known as Patrick W. Tierney, Deceased. Brandon E. CRAWFORD, Attorney for the Estate, Appellant, v. Patrick W. TIERNEY, Jr., and other heirs of the Decedent, Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 357

234 N.W.2d 357

70 Wis.2d 438

In the Matter of the ESTATE of Patrick TIERNEY, also known as Patrick W. Tierney, Deceased Brandon E. CRAWFORD, Attorney for the Estate, Appellant, v. Patrick W. TIERNEY, Jr., and other heirs of the Decedent, Respondents.

No. 124 (1974).

Supreme Court of Wisconsin.

Oct. 30, 1975.

Brandon E. Crawford, Superior, for appellant.

John T. Oswald, Duluth, Minn., for respondents.

HEFFERNAN, Justice.

Upon the filing of the final account in the estate of Patrick Tierney, the probate judge found the attorney's fees in the amount of $6,964.75 to be unreasonable, and he reduced the fees to $2,650. The attorney for the estate has appealed, claiming that fees should be allowed in the full amount. We conclude that the fees as submitted in the final account were excessive and that a reduction was proper. However, we conclude that the appropriate fee to be allowed is $4,500.

In this case Attorney Crawford furnished all the legal services from the commencement of the probate proceedings to the preparation of the final account, which was filed on August 13, 1973. The record shows that the work usually done by an executor was performed by the attorney. The executor limited his services to the deposit of checks to his account. The inventoried assets of the estate were slightly in excess of $200,000. The attorney's fees were based on the suggested fee schedules of the Douglas County Bar Association. They were computed as follows:

                5% on 1st           $ 15,000.00  = $  750.00
                4% on next            30,000.00   = 1,200.00
                3% on balance        156,529.35   = 4,759.75
                                                 -----------  $6,709.75
                Preparing Federal
                 Estate Tax Return      $ 90.00
                Serving as witness
                 on proof of will         15.00
                Legal services in
                 Special
                 Administration          150.00
                                    -----------                  255.00
                                                              ---------
                             TOTAL                            $6,964.75
                

The executor of the estate, who is not a beneficiary under the will, did not enter into any agreement for attorney's fees. He made no objection to Attorney Crawford's charges in the final account. However, upon the filing of the final account, objections were made by the residuary beneficiaries. The trial judge who had been hearing the probate matter disqualified himself from the proceedings for the determination of a fee, and this proceeding was assigned to Judge Harry E. Larsen.

The trial judge asked that the attorney support his charges by an itemization of the time spent on each of the proceedings and matters considered during the course of the probate. The attorney did not keep time charges during the course of the probate but prepared an estimate which purported to show that 140 hours had been spent in the course of the probate.

The trial judge concluded that these estimates were too high. For example, he pointed out that the attorney's estimate of 32 hours for the preparation of the final account was unrealistic and that 6 hours would have been appropriate and that only 16 hours, rather than 32 hours, should have been allocated to the preparation of the Federal Estate Tax Return. He also noted that some of the charges on an hourly rate were duplicated by lump sum charges allowed for the same work. He found that, in some instances, the attorney had allocated an hour of time for the dictation of letters which were extremely brief. The trial judge concluded:

'There are a substantial number of additional weaknesses in the time estimate and it is my conclusion that I can give no weight to the time estimate . . ..

'Mr. Crawford, having kept no time records in this matter, having submitted no reconstruction of the time involved acceptable or helpful to me, and having offered no other testimony or evidence of the time reasonably required for a reasonably experienced and efficient lawyer to perform services such as those involved in this matter, I have no alternative but to rely on my own knowledge of and experience in probate practice.'

Judge Larsen proceeded to do just that and, in reliance upon his own experience, he said:

'(I)t is my best judgment that an experienced efficient and prudent lawyer neither should nor would expend more than eighty hours in the performance of all legal services required in this proceeding from beginning to end. That allowance of time is sufficient to cover the special administration proceeding, the work involved with respect to the Federal Estate Tax Return and the appearance as a witness on the proof of the will.'

During the course of the hearing, Attorney Crawford produced two witnesses, both practicing lawyers in Douglas county, one of whom had been the public administrator for many years. Both had extensive experience in probate practice, and both had reputations as skillful and experienced lawyers.

The public administrator, Axel B. Peterson, testified that, 'The fees are in line with the usual charges by Douglas County attorneys with the size of the estate and the work involved.' He further stated that the normal charges made by attorneys in the area were those set forth in the schedule of fees adopted by the Douglas County Bar Association. His basic conclusion was that he felt that the fees were in an amount that could reasonably be allowed for inheritance tax purposes.

Attorney James C. McKay, Sr., the other witness, testified that he did not keep a log of the time spent in the handling of probate matters and that his fees were determined by the county bar schedule. He testified that the hourly rate for attorney's fees at the time of the hearing was $40 per hour. He said that, in the determination of fees, the amount of time an attorney must spend on the probate of the estate that should have been done by the personal representative should also be considered.

Attorney Crawford stated that $40 per hour was a normal fee for him to charge in other types of work. He acknowledged that his reconstruction of time charges could not be totally accurate and that it merely represented his best estimate of the time spent on the various phases of the probate proceeding.

On the basis of this evidence and taking judicial notice of his own experience in the handling of probate matters, the trial judge concluded that the chargeable time should not exceed eighty hours and that the appropriate rate per hour was $35. From this figure of $2,800, he subtracted $150 which had been approved as an additional fee for the special administration proceedings. In this manner he determined that the appropriate fee was $2,650.

Although there was some evidence to sustain the findings and conclusions of the trial judge, this court is not bound by the great-weight-and-clear-preponderance-of-the-evidence test in the matter of reasonable attorney's fees. Touchett v. E Z Paintr Corp. (1961), 14 Wis.2d 479, 111 N.W.2d 419.

As we said in Giffin v. Tigerton Lumber Co. (1965), 26 Wis.2d 327, 132 N.W.2d 572, a trial court conclusion in respect to attorney's fees is subject to this court's determination of what is reasonable, because this court has firsthand knowledge of the value of legal services. We are obliged, therefore, to review independently attorney's fees whenever they are challenged on appeal. Herro, McAndrews & Porter v. Gerhardt (1974), 62 Wis.2d 179, 184, 214 N.W.2d 401, 404. In Herro, we said "The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and...