Wheeler's Estate, In re, 38196

• Decision Date: 17 August 1967
• Docket Number: No. 38196,38196
• Citation: 71 Wn.2d 789,431 P.2d 608
• Court: Washington Supreme Court
• Parties: In the Matter of the ESTATE of Walter L. WHEELER, Deceased. Myron WHEELER, Albert Wheeler, Elmer Wheeler, Ralph Wheeler, Dorothy Dugdale, and May Switzer, Appellants, v. MONHEIMER, SCHERMER, VAN FREDENBERG & SMITH and McDowell and McDowell, Respondents.

Page 789

71 Wn.2d 789

431 P.2d 608

In the Matter of the ESTATE of Walter L. WHEELER, Deceased.

Myron WHEELER, Albert Wheeler, Elmer Wheeler, Ralph Wheeler, Dorothy Dugdale, and May Switzer, Appellants, v. MONHEIMER, SCHERMER, VAN FREDENBERG & SMITH and McDowell and McDowell, Respondents.

No. 38196.

Supreme Court of Washington, Department 2.

Aug. 17, 1967.

Heckendorn & Best, Seattle, for appellants.

Monheimer, Schermer, Van Fredenberg & Smith, Seattle, for respondents.

WARD, Judge. ^*

The sole purpose of this appeal is to seek review of orders of the court fixing attorneys' fees for services rendered. The assignments of error made require a review of part of the proceedings in the administration of the estate of Walter L. Wheeler, deceased. The probate of this estate was commenced on April 9, 1958, and the estate has not yet been closed. The petition for probate of decedent's will was filed by Myron R. Wheeler, a brother, who was named as executor in the will. Following his appointment, Myron R. Wheeler filed his inventory under oath, stating that the property of the estate was of less value then $1,000 'and consists of cash which was removed by unauthorized persons and not yet located, clothing, and personal items only.'

The beneficiaries under decedent's will were his mother, May Switzer, for whom the decedent provided a life estate, and his four brothers, Elmer Wheeler, Myron Wheeler, Ralph Wheeler and Albert Wheeler, and his sister Dorothy Dugdale to whom decedent devised and bequeathed the remainder in equal shares. Walter Curnutt acted as attorney for the executor from April, 1958, until September, 1963. Shortly after the will was admitted to probate, three of the brothers, Albert, Ralph and Elmer, engaged the services of D. Van Fredenberg, a member of the Seattle bar, to bring an action against Myron Wheeler and his sister Dorothy Dugdale. In this action the plaintiffs sought to set aside a deathbed deed and bill of sale executed by the decedent, pursuant to which Myron and Dorothy claimed to have acquired from the decedent substantially all of the decedent's property. The action was vigorously contested by Myron and Dorothy. The court found in that case that at the time Walter L. Wheeler signed the instruments, he was near death resulting from cancer, and that he was then incompetent to execute the instruments. Judgment was entered setting aside the deed and bill of sale. The legal services rendered by Van Fredenberg resulted in the enrichment of the estate with property which was then considered to have a value of more than $70,000. The property of the estate was appraised on January 23, 1960, in the total sum of $78,300. It was later reappraised on November 13, 1963, in the total sum of $68,300.

On February 2, 1960, Albert Wheeler, acting in behalf of the three brothers who had been successful as litigants, filed a petition in the estate asking that the court fix Van Fredenberg's fee for the services which he had rendered in that litigation, and that the fees and cost of the action be made a charge against the estate. A citation was thereupon issued out of the probate court requiring Myron Wheeler, as executor, to appear and show cause why the petition should not be granted. Pursuant to such citation, the executor and the attorney for the estate appeared before the court on March 11, 1960, and testimony was presented by the petitioner and his witnesses with respect to the value of the services rendered by Van Fredenberg. The hearing upon the petition was had before the Honorable Robert O. Beresford, acting as judge pro tem., who entered an order on April 5, 1960, which was, in effect, a judgment, fixing the sum of $7,830 as a reasonable attorney's fee for the services rendered by Van Fredenberg in cause No. 520125 entitled 'Elmer, Ralph and Albert Wheeler v. Myron Wheeler and Dorothy Freida Dugdale.' The order also directed that such judgment be a valid charge against the estate of Walter L. Wheeler, deceased.DP Mr. Van Fredenberg thereafter had no contact with the affairs of the estate until February, 1963. At this time, the state of Washington had commenced proceedings in eminent domain seeking to take a substantial part of the real property owned by the estate, including the Brown Derby Tavern, for freeway purposes. Myron Wheeler, the executor, thereupon engaged the services of Mr. Van Fredenberg to represent the estate in the condemnation proceedings.

The state's offer for the property to be taken at that time was $38,345. On behalf of the estate, Mr. Van Fredenberg engaged the services of a reputable and experienced appraiser who determined that just compensation for the property to be taken would be $42,050. Mr. Van Fredenberg thereupon engaged the services of a second appraiser who determined that just compensation to the estate for the property to be taken was $48,000. His services ended when he succeeded in effecting an out-of-court settlement with the attorney general's office pursuant to which the estate received $51,000 for the property taken. This was $3,000 over the highest appraisal he was able to obtain. Legal services rendered by Mr. Van Fredenberg resulted in the estate receiving $12,655 more than the sum first offered by the state. For these services to the estate, the court allowed Mr. Van Fredenberg $2,500.

After the settlement of the condemnation case was effected, the executor engaged the services of the legal firm with which Mr. Van Fredenberg was associated, Monheimer, Schermer, Van Fredenberg and Smith, to complete the probate of the Walter L. Wheeler estate. From then on, most of the legal services for the estate were rendered by Mr. Monheimer. From 1958 until Mr. Monheimer took over in 1963, little had been done in the administration of the estate other than the admission of the will to probate and the filing of the inventory and appraisement.

It is not necessary to detail all of the services rendered by Mr. Monheimer in the estate matters. The executor called David O. Hamlin as his expert witness on the value of Mr. Monheimer's services in the probate proceedings. Mr. Hamlin is a qualified, experienced Seattle attorney. He testified with respect to Mr. Monheimer's services: 'In my judgment, he has performed, I would say, at least two-thirds of the entire job of administering this estate. The ordinary fees would be $2240. I think two-thirds of that would be roughly $1500.'

We note that the services rendered by Mr. Monheimer included several matters which are not usually included in handling an estate. Mr. Hamlin was the only disinterested witness who testified as to the value of Mr. Monheimer's services. The court fixed the fee in the sum of $1,450.

Mr. Monheimer had the final report prepared when the executor became dissatisfied with his services. On May 7, 1964, the executor filed a petition requesting the court to authorize substitution of his present counsel for the firm of Monheimer, Schermer, Van Fredenberg and Smith. His petition also requested a hearing for determination of reasonable attorneys' fees for both the condemnation matter and for Mr. Monheimer's services to the estate. Mr. Van Fredenberg also filed a petition asking the court, on hearing, to determine the amount of fees earned by his firm in the condemnation proceedings, and for the services rendered directly in the probate proceedings.

It will be noted that neither petition requested any vacation of the judgment entered on April 5, 1960, fixing Mr. Van Fredenberg's compensation for services rendered in the case which resulted in setting aside the deed and bill of sale. No petition has ever been presented to the court either by the executor or any of the beneficiaries under the will to vacate such judgment. Neither of the petitions filed in 1964 request any relitigation of the issues determined 4 years previously. Neither the executor nor any of the heirs expressed any dissatisfaction with the amount of fee allowed by this judgment until the executor filed his petition for substitution of counsel in April, 1964.

On the hearing of the petitions, the executor sought to relitigate the issues determined in 1960, but the trial court ruled that the matter was res judicata. The attorney for the executor thereupon made an offer of proof, stating the facts which he would attempt to prove if permitted to relitigate the fee allowed Mr. Van Fredenberg in 1960.

In his assignments of error, the executor claims that the probate fee of $1,450 and the fees allowed for legal services in the condemnation proceedings in the sum of $2,500 were excessive. The executor also assigns as error the refusal of the court to permit him to relitigate the issues determined by the judgment entered in 1960.

The executor claims that the amount of fees allowed in both the probate proceedings and in the condemnation proceedings were unreasonable and excessive when computed upon an hourly basis using the Seattle Bar Association's minimum fee schedule as a standard for such charge on an hourly basis. If this standard, only, could be properly used, the executor would be correct.

The hourly basis is a proper standard to be used by attorneys who wish to perform services on either an express or implied contract, using the hourly rate as the sole standard for determining their fee. Here the attorney would be inadequately compensated for his services if it were measured solely by the amount of time spent.

In this case, one standard for measurement of a reasonable fee which must be considered is the benefit to the client resulting from the legal skill and experience employed in the client's behalf. In addition, Canon 12 also directs that a standard for measuring a proper fee is the customary charge of the bar for similar services. The trial court had evidence before it that the fee allowed was less than customary for similar services. Considering all proper standards in this case, we find no error in the allowance of...