628 A.2d 1354 | Conn. Super. Ct. | 1992
This will construction proceeding was instituted by the plaintiff Bank of Boston, Connecticut, (Bank of Boston) in its capacity as Trustee1 under the will of Phebe Warren Brewster Healey (testatrix) against a number of defendants.2 The Bank of Boston as Trustee seeks in particular the construction of language of the testamentary trust ("the Trust") set up by the Testatrix Phebe Warren Brewster Healey in article thirteenth paragraph (B) of her will executed on January 12, 1972. All the parties are represented by counsel and have submitted the case to this court on the basis of an executed stipulation of facts to which is attached certain exhibits. The court held a hearing and has also had the benefit of pretrial and posttrial briefs.
Paragraphs (A) leaves "one-half (1/2) of said residue and remainder to my son, William Patrick Brewster, the same to him absolutely and forever. . . ." He was the testatrix's son by her first marriage. Paragraph (A) of Article Thirteenth states in full the following: "One-half (1/2) of said residue and remainder of my estate to my son WILLIAM PATRICK BREWSTER, the same to be his absolutely and forever. If my son, WILLIAM PATRICK BREWSTER shall either predecease me or die within five (5) months after my death, I give, devise and bequeath one-half (1/2) of the share he would have taken under this Article to the wife of my said son if any, if she be living at the time of my death, and the other one-half (1/2) to any children of my said son, WILLIAM PATRICK BREWSTER, living at the time of my death, in equal shares. And in the event there shall be no such surviving wife of my said son, then the entire share given and bequeathed in this Article shall go to the children of my said son living at the time of my death, in equal shares, or in the event there shall be no surviving children of my said son, then the entire share devise and bequeathed to my said son, shall go to his surviving wife. In the event there shall be no surviving wife or children of my son, then the share of my estate devised and bequeathed to him in this Article, shall be divided equally between the seven (7) charitable institutions named under Article Twelfth in this Will."
Paragraph (B) of Article Thirteenth states the following: "The other one-half (1/2) of the rest, residue and remainder of my estate, I give, devise and bequeath *477 to the SECOND NATIONAL BANK OF NEW HAVEN, a corporation organized and existing under the banking laws of the United States, and having its office and principal place of business in the City and County of New Haven, State of Connecticut, and WILLIAM FOX GEENTY of New Haven, Connecticut, IN TRUST, FOREVER, and for the following purposes and uses described and enumerated in the remaining paragraphs of this Article Thirteenth.
"The Trustees shall pay the entire income from this Trust to the sisters of my late husband, Stanhope B. Healey, MRS. LAWRENCE B. PACKARD, Post Office Box 413, Woods Hole, Massachusetts, MRS. HARRY LEE WATTS, 402 Forty-Ninth Street, Virginia Beach, Virginia, MRS. RICHARD L. GREENE, R.F.D. 2, Box 239, Amherst, Massachusetts, MRS. ROBERT OSTER, 694 Gladstone Avenue, Baltimore, Maryland, in equal shares, during their lifetimes, at least as often as quarter-annually.
"Upon the death of each of the above-named sisters of my late husband, Stanhope B. Healey, the Trustees shall pay one-fourth (1/4) of the principal of the Trust created by this Article as it may then exist and any accrued or unpaid income due to said deceased sister, free and discharged of trust to the children of said deceased sister, in equal shares. The children of any deceased child shall take the share of their parent, equally.
"In the event any of the above-named sisters of my late husband, Stanhope B. Healey, shall die, leaving no children or grandchildren surviving her, then the share of the principal of this Trust that said children or grandchildren would have taken shall be divided equally between the seven (7) charitable institutions named under Article Twelfth of this Will." *478
Paragraph C3 of Article Thirteenth sets out the rights and duties of the trustees under the trust set up in Paragraph (B) of that article.
As to the defendants: The defendant, William Patrick Brewster, is the son of the testatrix by her first marriage, is her sole heir-at-law and is a beneficiary under Article Thirteenth Paragraph (A) of the will.
He was alive at the time the testatrix executed the 1972 will and he is still living. All four sisters-in-law *479 named in paragraph (B) were alive at the time of the testatrix' death in 1975. On October 30, 1988, Leonore Packard, one of the sisters-in-law died. The Bank of Boston, Trustee and William Fox Geenty as trustees, according to the stipulation "paid one-fourth of the principal of the Trust as it then existed to Ann P. Horrell, Mrs. Packard's only child." The stipulation, also states that "The value of the principal as it existed on October 30, 1988 equaled $1,124,215.48 and the value of the amount distributed to Ann Horrell equaled $281,053.87." *480
Thereafter, on February 9, 1991, a second sister-in-law Constance H. Greene died. She left her children the defendants Mary Elizabeth Greene, Frank L. Greene and Susan G. Richards. No other children were born to or adopted by Constance H. Greene.
A third sister-in-law Edith Healey Watts (Mrs. Harvey Leebatts) is a also a defendant. Her children Harry Lee Watts III, Constance W. Krucke and Virginia W. Fournier are also defendants; she had no other children either by birth or adoption. Edith's grandchildren Letitia Watts, Alison L. Watts, Carl W. Krucke, Kurt W. Krucke, John B. Krucke, Paul H. Fournier, Ann M. Fournier and Emily Page Fournier are also defendants.
A fourth sister-in-law, Muriel Healey Oster (Mrs. Robert H. Oster) is also a defendant as are Judith O. Cushman and Robert Rush Oster. The defendant Margo Wittich, is the executrix of the estate of Jon O. Oster, the deceased child of Muriel Healey Oster. No other children were born to or adopted by Muriel Healey Oster, Muriel's grandchildren Brooke Blackburn Cushman, formerly known as Brooks Cushman Sullivan, Jonathan Walker Cushman, Stewart Wakeley Cushman, Christopher Rush Oster, Keith Edward Oster, Robert Nelson Oster and Lawrence Franklin Oster are also defendants.
Attorney Robert J. Engelman of New Haven has been appointed as guardian ad litem for those defendants who are unborn and undetermined who have an interest in this matter as possible remaindermen under the trust created by Article Thirteenth. His appointment in that capacity was consented to by all appearing defendants.
Seven charitable beneficiaries4 each of whom take specific bequests under Article Twelfth of the Will and *481 who are contingent remaindermen of the trust shares "devised" to the children of the testatrix' sisters-in-law under Article Thirteenth have also been made defendants.
The defendant Richard Blumenthal is Attorney General for the State of Connecticut.
As noted, on February 9, 1991, a second sister-in-law, Constance H. Greene died leaving her children Mary Elizabeth Greene, Frank L. Greene and Susan L. Richards. On March 28, 1991, the Trustees, Bank of Boston Connecticut and William Fox Geenty filed with the Probate Court for the District of Hamden an accounting (1991 accounting) of their actions for the period of January 1, 1990 to February 9, 1991. A copy of that 1991 accounting is attached to the stipulation of facts as Exhibit B. Suffice it to say at this point that that 1991 accounting did "state that Mrs. Richardson L. Greene died February 9, 1991 and one-third of the market value of this trust is to be distributed to Mary Elizabeth Greene, Frank L. Greene and Susan G. Richards."
On April 26, 1991, Brewster filed an objection to this 1991 accounting with the Probate Court for the District of Hamden. A copy of this objection is attached to the stipulation of facts. In that objection Brewster urged that the Hamden Probate Court reject the trustees proposed 1991 accounting and distribution because "it is contrary to the terms of Article Thirteenth." In doing so he pointed out that the following portion of paragraph (B) of Article Thirteenth "provides in pertinent part" as follows: "Upon the death of each of the above-named sisters-in-law of my late husband, Stanhope B. Healey, the trustees shall pay one-fourth (1/4) *482 of the principal of the trust created by this Article as it may then exist and any accrual or unpaid income due to said deceased sister free and discharged of trust to the children of said deceased sister, in equal shares." (Emphasis added). Brewster's objection further stated that "The trustees, in contradiction of the express language of the Trust, propose to pay one-third of the market value of the trust to the three children of Mrs. Richardson L. Greene in equal 1/9th shares respectively." Although acknowledging that the trustees "have been endowed with numerous powers to hold and manage the trust assets. . ." he argued that "they have not been authorized or enpowered to alter the express directives of the distribution provisions." He then requested that court to "reject the proposed account and order the trustees to file a new account and distribution."
The hearing on the 1991 accounting scheduled for May 1, 1991 was continued to May 15, 1991. The Judge of Probate for the Probate District of Hamden has withheld a determination upon the 1991 accounting while this suit to construe the will is pending.
The parties have also stipulated that: "The plaintiff cannot with safety to itself or the rights and interests of the other parties carry out its duties as Trustee and distribute the Trust estate unless this Court construes the will and advises the Trustee as to its conduct."
The other parties make a number of claims which will be examined below. Brewster makes claims involving the following which will be discussed below: The testatrix' will, and particularly Article Thirteenth, paragraph (B), is clear and unambiguous and in construing this will, the court must give effect to the words used by the testatrix. In construing the will the court "is not free to disregard the mathematical divisions of the trust principal which Mrs. Healey set forth in her will" and may not increase the shares to go to the families of her sisters-in-law. The court cannot, Brewster also maintains, rewrite the will and may not supply a dispositive provision that was omitted. The will's provisions, as written, must be given effect even though they may lead to a partial intestacy. The presumption against intestacy does not permit, he also contends, "reformation" of this will. He argues that the presumption against intestacy does not apply because the "particular provision in question", i.e. Article Thirteenth Paragraph (B) is not fairly open to two constructions" as Article Thirteenth is "clear and unambiguous." Nor, he continues, does the testatrix' testamentary scheme "override the particular provisions of Article Thirteenth, Paragraph (B)." Brewster also points to Connecticut case law refusing to admit "extrinsic evidence" to "correct or vary the unambiguous terms of wills" but says that while the other defendants "do not seek directly to introduce extrinsic evidence, they do seek to substitute their distribution scheme for Mrs. Healey's instructions." In urging his claims as to the rules of construction to be applied he emphasizes the vital public policy to be served by doing so, including the preservation of the statute of wills. General Statutes §
Brewster's ultimate claim in his brief is that this court should "advise the plaintiff [trustee] to pay one-fourth of the principal of the trust as it existed on February 9, 1991 to the children of Constance H. Greene; one-fourth of the Trust principal as it exists upon the death of the third sister-in-law to her children or grandchildren or to the charities; and one-fourth of the trust principal as it exists upon the death of the last sister-in-law to her children or grandchildren or to the charities. The remainder of the Trust is intestate property."
On the other hand the defendants6 make the claims involving the following which will be discussed below. Collectively, the defendants contend as follows: The terms of article thirteenth, paragraph (B) when read in isolation, are "ambiguous as to the fractional interest to be distributed upon the successive deaths of the testatrix' four sisters-in-law" but "when the will is read as a whole, the testatrix' interest is clear." Although claiming that the language of that part of paragraph (B) is "inartful" that does not prevent, they claim the court from ascertaining the wishes of the testatrix where there is a plausible construction which disposes of her entire estate consistent with her intent. It is also maintained that no portion of her estate passes by intestacy as the testatrix intended to die testate as is evidenced by the overall scheme of her will including the use of a residuary clause and that plausible construction avoids intestacy keeping in mind the presumption against intestacy. The testatrix' testamentary scheme, the defendants further contend, evidences an *485 intent to treat all her sisters-in-law and their children and her grandchildren equally and the residuary clause (in article thirteenth paragraph (B) should be construed in a way that promotes that equality. The claim is also made that the evident intent of the testatrix to treat her sisters-in-law equally abruptly ends, they say, under Brewster's claims, when one reaches article thirteenth paragraph (B). Reading the will as a whole, the defendants argue that it can be found that it was the testatrix' intent that each sister-in-law's children or grandchildren receive a one-fourth share of the original trust principal in whatever form such share existed at the time of each sister-in-law's death. This construction, it is further claimed, can be gleaned from the will without doing violence to the words used in the will or "rewriting" it. It is also argued that the language used to dispose of the accrued income is consistent with their claim that the testatrix' use of the word "one-fourth" referred to the original principal and not to the remaining principal. They oppose any construction that "one-fourth" as used in Article Thirteenth, paragraph (B) should be such, as Brewster they claim maintains, to require a "diminishing share" share to the children as each successive sister-in-law dies. In so arguing they refer to authority from outside Connecticut to the effect that some courts have gone so far as to reject mathematical percentages where the court determines that the testator intended to treat beneficiaries equally. At this point it should be said that this court does not intend to rely on any authority outside of Connecticut in resolving any such claim. They appear also to contend that their claim as to the construction they advocate is supported by the accounting objected to by Brewster, pointing out that, Geenty, who admittedly drafted this will, understood what the testatrix meant by the words she used.
The defendants (other than Brewster) ultimate claim is that "One-third of the remaining trust principal and *486 one-third of any accrued or unpaid income be distributed to the children of the late Constance H. Greene in equal shares; that one-half of the trust principal remaining at the death of the third sister-in-law and one-half of any accrued or unpaid income be distributed to the then-living children of said deceased sister-in-law in equal shares and to the children of any predeceased child equally and all of the trust principal remaining at the death of the last sister-in-law together with all accrued or unpaid income be distributed to the then-living children of that deceased sister-in-law in equal shares and to the children of any predeceased child equally." This court understands that this claim assumes that their arguments as to how the language involved should be construed is accepted by the court.
The parties have urged their view of our case law, is applied to this case, upon the court to support their positions. In that regard we note that our case law has said that "in the field of testamentary construction, precedents are usually inconclusive since the same or substantially similar expression, seldom occur in different wills. Browan [Brown] v. Potter,
Article Seventh disposed of the testatrix' jewelry and wearing apparel which she bequeathed to her four sisters-in-law and one named other person, "in equal shares." She included also in this Article the same proviso as in Article Fourth concerning the legatees surviving her as well who takes on the death of any down to the last survivor of those five legatees. *490
Article Thirteenth, and specifically Paragraph (B) thereof which is the portion directly in issue has been already set out. It is enough to say of it at this point that the testatrix evident treatment of her four sisters-in-law equally is clear in the trust created under Paragraph (B) of this Article both as to income and principal. Paragraph (C) of Article Thirteenth, of which more will also be said, sets out certain rights and duties under the trust created under article fourteenth.
Initially, where a will has been executed, the reasonable presumption is that the testator intends to dispose completely of his entire estate. Stinson v. Palmer,
Up to Article Thirteenth the testatrix, at length and with care, has made all her specific dispositive provisions. Article Thirteenth sets out a "studied effort", Ministers Benefit Board v. Meriden Trust Co., *491
One cannot reasonably read this will without gleaning from the provisions that the testatrix strove to articulate her intention to keep the two halves of her residuary estate in paragraphs (A) and (B) clearly separate. In that regard, in addition to what has already been said there are no crossover devises or bequests *492 between her son on the one hand and those who would take through him and the testatrix' four sisters-in-law on the other hand and those who would take through them. In the event of the failure, under paragraph (A), of anyone designated therein to take in accordance, with that paragraph, the "one-half" of the residuary there involved would not go by intestacy or to anyone eligible to take under paragraph (B) but rather under article seventh to the charities named there. In like fashion, in the event of the failure under paragraph (B) of anyone designated therein to take "the other one-half (1/2)" that would not go by intestacy, nor to anyone eligible to take under paragraph (A) but again it would pass under article seventh to the charities named therein. Moreover, in paragraph (B) the testatrix, as further indication of her intent to direct the devolution of that half of her residuary estate, provided that upon the death of a sister-in-law "any accrued or unpaid income due to said deceased sister" was to be paid "free and discharged of trust to the children of said deceased sister in equal shares. . . ." This further evidences her intent of compartmentalizing the devolution of the disposition of each half of her residuary estate.
Her will on its face evinces the intent, insofar as article thirteenth is concerned, and particularly paragraph (B) of that article, of treating her four sisters-in-law equally and to insulate the one-half of the residue given them and their progeny not only from any intestacy but articulating that any failure of them to take as provided is to go only to the charities named in article twelfth. This is complemented by the evident intent to treat her son equally as she does under paragraph (A) where she gives him one-half of the residue of her estate and likewise compartmentalizing the devolution of the one-half in paragraph (A).
Although, however, "a testator clearly intends to dispose of his entire estate, `a construction required by *493
the terms of a will cannot be avoided because it leads to intestacy in whole or in part.' Wolfe v. Hatheway,
Brewster contends that the presumption against intestacy does not apply because the "particular provision in question", i.e., article thirteenth, paragraph (B), is not fairly open to two constructions as article thirteenth is clear and unambiguous. Brewster argues that the language "one-quarter of the principal . . . then exist" has as its triggering determinant, the date of the death of a particular sister-in-law. This is the date that, controls the determination in dollars of what constitutes her "one-quarter of the principal . . . then exist." Therefore, he contends, that the "trustee shall pay one-quarter of the principal of the trust as it exists when a particular sister dies to the sister's children, grandchildren or charity as appropriate under the Article." In any event, he also argues that the testatrix' testamentary scheme cannot be said to "override the particular provisions of Article Thirteenth Paragraph (B)". From what the court has said to this point of the evidence of the testatrix' intent, the position Brewster takes requires that, upon reaching article thirteenth and particularly paragraph (B), *494 that that portion of the will be read with the consequence of a partial intestacy, in which event he would take as his mother's heir at law. This court does not agree.
The intent of the testatrix to preclude an unintended intestacy is readily discernible from the whole will and article thirteenth. It is quite arguable as the defendants say and as the court agrees, that the language employed in paragraph (B) is "inartful" in expressing the intent in paragraph (B), but that intent is reasonably clear under the whole will including article thirteenth. See Wolfe v. Hatheway, supra, 185; Hurd, Trustee v. Shelton,
This situation, however, presents a circumstance allowing the application of the rule that a will is to be construed to avoid intestacy as to any part of the estate where the particular provision in question is "fairly open to two constructions." Willis v. Hendry, supra, 438; Colonial Bank Trust Co. v. Stevens, supra, 38. Where the will involved is susceptible of two constructions, one of which will dispose of the whole of his estate as opposed to disposing of part of it by intestacy, "the courts will prefer the construction by which the whole of the testator's estate is disposed of, if this construction is reasonable and consistent with the general scope and provisions of the will." Allen v. Tyson,
The trust created by paragraph (B) was intended to dispose of the "other one-half" of the testatrix' residuary estate. In executing her will she said, in article thirteenth, paragraph (B), that "upon the death of each [of her four sisters-in-law] . . . the trustees shall pay one-fourth (1/4) of the principal of the trust created by *495
this Article [thirteenth] as it may then exist and any accrued or unpaid income due to said deceased [sister-in-law], free and discharged of Trust to the children of said deceased [sister-in-law] in equal shares. The children of any deceased child shall take the share of their parent, equally. . . ." She said, as indicated, that this "shall" be done "upon the death of each [of the four sisters-in-law]. . . ." Brewster argues, therefore, that the date of the death of each sister-in-law and, not the date of the testatrix' death, was the time when the "one-quarter (1/4) of the principal of the trust created by this Article as it may then exist" was to be determined. It bears repeating here that the meaning of words used by a testatrix in a particular paragraph is not to be deduced by extracting and examining them in artificial isolation, but must be interpreted in light of their context within this paragraph, this particular article thirteenth and with reference to the will in its entirety. Canaan National Bank v. Peters, supra, 336. This court cannot accept Brewster's claims under the circumstances including the deliberate testamentary scheme referred to, the clear indication to dispose of all of her estate, the articulated language evidencing the intent for equality of treatment, each of which finds support in paragraph (B), itself, and the fair reading of the language involved in the light of the entire will. The weight of authority is to the effect that a will speaks as of the death of the testator unless there is something in the will to indicate a contrary intention, but the court recognizes, that a testator may, by use of suitable language in the will, show that his will deals with things, persons and the like as they existed at some time other than his death. 4 W. Page, supra, § 30.26, see, e.g., Mead v. Close,
The court's construction is not a rewriting of this will. The fractional interest, i.e., "one-fourth (1/4) "of the "other one-half (1/2)" she gave in trust that she articulated and intended that each of her four sisters-in-law were to have has not been charged or rewritten by this court. The first one-fourth has already been paid by her trustees under the article fourteenth trust. This leaves on the death of Constance Greene, "three-fourths" or "three-quarters". "One-third" of what is left, i.e., "three-quarters" or "three-fourths" equals, expressed in fractions, "one-fourth" or "one-quarter" of the original "other one-half" given in trust under article thirteenth paragraph (B).
The "one-third" that the trustees asked the Hamden Probate Court to approve in the 1991 accounting for distribution because of the death of Mrs. Greene is "one-fourth" of the trust as the testatrix intended it be distributed. The "one-third" language in the 1991 accounting is in accord with that intent and should be so recognized. That, in turn, leaves "one-half" remaining or two "one-fourths" available for distribution, one upon the death of the third sister-in-law and the remaining one upon the death of the fourth sister-in-law. In that fashion the testatrix' intent to treat each of her *499
four sisters-in-law is equally is effectuated in accordance with the will. This, the court submits, is not rewriting her will. It is not filling a gap or omission of the language providing fully for her intended disposition by will as was the case in Willis v. Hendry, supra, 427. Rather, it effectuates her articulated intent. The statute of wills in General Statutes §
This court has not overlooked in our construction Brewster's claim that the general testamentary scheme of this testatrix, as the other defendant claim it to be, cannot override the particular provisions of article thirteenth paragraph (B) as he claims them to be. As has already pointed out, the court is confined to the testator's intent "which finds expression in the wording of the will." See, e.g., Meriden Trust Safe Deposit Co. v. Spenar,
In accordance with the foregoing, the Bank of Boston, as trustee under the will of Phebe Warren Brewster Healey in Article Thirteenth Paragraph (B) is advised: (1) That it may distribute one-third (1/3) of the remaining trust principal and one-third (1/3) of any accrued or unpaid income to the children of the testatrix' late sister-in-law, Constance H. Greene in equal shares; (2) That upon the death of the third sister-in-law of the testatrix, it may distribute one-half (1/2) of the trust principal remaining at her death and one-half (1/2) of any accrued or unpaid income to the then-living children of that third sister-in-law in equal shares. If, upon the death of said third sister-in-law, any child of hers has predeceased her leaving any child or children, the trustee may distribute to such child or children their deceased parent's share equally; (3) That upon the death of the fourth (and last) sister-in-law, it may distribute all of the trust principal remaining upon the death of said fourth sister-in-law together with all accrued and unpaid income to the then living children of said fourth sister-in-law in equal shares. If, upon the death of said fourth sister-in-law, any child of hers has predeceased her leaving any child or children, the trustee may distribute to such child or children their deceased parent's share equally. *501
In brief form, more fully discussed below, we observe that the requests for counsel fees and expenses under §
(2) The James Brewster request: Attorney William H. Clendenen, Jr. — 50.5 hours @ $225 per hour = $11,362.50; Attorney James E. Clifford — 9 hours @ $150 per hour = $ 1350; Attorney Nancy Walker — 80.1 hours @ $150 per hour = $12,015; Independent contractor Janet O. Marlowe — 2.2 hours @ $40 per hour = $88; Legal Assistant Lynne M. Tourville — 1.9 hours @ $40 per hour = 76; plus photocopy and postage costs of $54.03, for a total of $24,945.53.
(3) The Charities request: Attorney David P. Faulkner — 11.94 hours @ $225 per hour = $2686.50; Attorney Phyllis M. Pari — 7.8 hours @ $95 per hour = $712.50; Legal assistant Elizabeth Baechler Warren — 2.66 hours @ $70 per hour = $186.20; plus *503 disbursements (telephone) of $1.64, for a total of $3586.84. The affidavit in support of the request states: "Counsel Fees and Expenses Total $2205.28."
(4) The request for the services of the guardian ad litem, Robert E. Engelman, under §
Initially, we note that §
Additionally other principles may be pointed out. It has been well-said that "[n]o one can state the reasonable value of legal services as a fact. He can only express his opinion. The value is based upon many considerations." Hoenig v. Lubetkin, supra, 524; Piantedosi v. Floridia,
It should be pointed out that the United States Supreme Court has said that while "the number of hours reasonable expended on the litigation multiplied by a reasonable hourly rate" is "[t]he most useful starting point for determining the amount of a reasonable fee"; Hensley v. Eckerhart, 433; it has also said that "[t]he product of reasonable hours times a *505 reasonable rate does not end the inquiry"; id., 434; because "there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either an unreasonably low or unreasonably high." Blum v. Stenson, 897. "The court has few duties of a more delicate nature than that of fixing counsel fees" Hoenig v. Lubetkin, supra, 525.
Courts have stressed the need to submit proper time records. In this regard it has been said: "The party seeking fees has a duty to submit detailed and contemporaneous time records to document the hours spent on the case. A simple after-the-fact tally is not sufficient. Copies of the actual time records should be submitted." Denton v. Boilermakers Local 29,
The familiarity of the court asked to pass upon counsel fees with the particular case is significant as it can assess the nature of the entire litigation, the manner in which the legal and factual issues were presented at trial, the written submissions filed by counsel and other elements of the litigation with which it is familiar. See Ruiz v. Estelle,
A court is not required to accept an attorney's valuation of his own time. See, e.g., Chrapliwy v. Uniroyal, Inc.,
At this point certain observations generally applicable to this will construction proceeding may be made. It presented serious questions of construction upon which there were genuinely differing claims that were competently and zealously advocated both in writing and orally. It does not involve, however, complex or novel issues but fairly straightforward. This construction case was not one of long standing, having come to the Superior Court little over a year ago.11 The pleadings were not complicated. There was no discovery taken so far as appears from the court file. The trial in court on the construction issues, presented upon a stipulation of facts, actually took about an hour and a half. From remarks made at that trial it was indicated the issue "ultimately involved about One Million Dollars. . . ."12 Other than statements from counsel *507 themselves as to what their usual hourly rates were or what was the community rate, there was no evidence adduced in that regard before this court. No expert testified. It bears noting that the requests in this proceedings are not in the context of public interest litigation where the statute involved legislatively enacts a private attorney general concept. Rather, the court involved with what might be called private interest litigation that involves the settling of the differences between the contenders.
The court will take up first the requests made under §
The court has examined in detail both the Greene motions for counsel fees in which the first date for rendering services given is September 23, 1991. It has determined that the following hourly rates are reasonable for the attorneys in the proceeding: William J. Britt — $185; Barbara S. Miller — $160; Anne Ragusa — $20. *508
In examining the itemized number of hours of each of the above three attorneys the court concludes, under all the circumstances that the number of hours to be allowed as reasonably expended by each are as follows: William J. Britt — 24.3 hours; Barbara S. Miller — 73 hours; Anne Ragusa — 289.5 hours.
Thus, reasonable counsel fees ordered awarded as to the Greene request are found to be: William J. Britt — 24.3 hours @ $185 per hour = $4495.50; Barbara S. Miller — 73 hours @ $160 per hour = $11,680; Anne Ragusa — 289.5 hours @ $20 per hour = $5790; for a total of $21,965.
Expenses are allowed and awarded in the amount of $363.24.
The court has determined that the following hourly rates are reasonable for the attorneys in this proceeding: David P. Faulkner — $185; Phyllis M. Pari — $95.
After examining the itemized number of hours of the above attorneys, the court concludes that under all the circumstances, the number of hours to be allowed as reasonably expended by each is as follows: David P. Faulkner — 11.94 hours; Phyllis M. Pari — 7.85 hours. *509
It appears to the court, after examining the itemized hours set out in this request, that at the hourly rate this court deems reasonable in this proceeding, this request for allowance indicates "billing judgment" by way of adjusting counsel fees for the two charities involved given the time expended. See generally Hensley v. Eckerhart,
The request of the charities for an allowance of $2205.28 in attorney's fees and expenses is approved.
The court notes at the outset several matters. This request does not emanate from a prevailing party. The statute, i.e., §
There is, nevertheless, another matter that is threshold to at least a portion of this application, which must be decided at this point. The itemized time sheets as to services rendered begin with the entry on April 24, 1991 and are followed by a number of entries up to August 5, 1991, the date upon which the writ, summons and complaint in this action was served upon the defendant Brewster. Section
Before determining what action remains to be taken on the Brewster requests, one other matter deserves brief comment. There is some suggestion that equity *511
should preclude Brewster from an award under §
The court has examined in detail the itemized Brewster request beginning with the date this action was instituted, i.e. August 5, 1991. It has determined that the following hourly rates are reasonable for the attorneys in this proceeding: William H. Clendenen — $185; Nancy Walker — $125; James E. Clifford — $100. *512
After examining the itemized number of hours of the above attorneys, the court concludes that under all the circumstances the number of hours to be allowed as reasonably expended from August 5, 1991, by each are: William H. Clendenen — 31.30 hours @ $185 per hour = $5790.15; Nancy Walker — 50.9 hours @ $125 per hour = $6362.50; James E. Clifford — 4 hours @ $100 per hour = $400 for a total of $12,522.65.
Charges for legal assistants starting from August 5, 1991 are allowed in the sum of $64 and expenses from that date are allowed in the sum of $54.03. This makes for allowances for counsel fees and expenses granted under the Brewster request in the total amount of $12,670.68.
As pointed out, the court here is not dealing with the same statute as it was with the other fees and expenses applications Under §
The guardian ad litem entered this litigation later than counsel for the other defendants. Concededly the issues were more sharply defined when he did so. Again the court has examined in detail the time records submitted. It is not necessary for the court to go into any detail here concerning what Attorney Engelman as the court appointed guardian ad litem claims. It is deemed proper to say, however, that the court has determined that a reasonably hour rate for him in this litigation is concluded to be $175 per hour and that he has performed his duties quite diligently and carefully.
The statute states "reasonable compensation" is the benchmark. The court appreciates that included in his application is a claim for services of an "associate attorney" who services were retained and which constitutes a substantial portion of the ultimate amount claimed. Under the circumstances, it is concluded that the "Application for Guardian add Litem Fees" requesting an allowance of $7360 is ordered that "reasonable compensation" be allowed in the amount of $5360. The disbursements to the guardian in the amount of $16.13 are ordered allowed.
The counsel fees and expenses hereinabove allowed under §
Judgment in this action is hereby ordered entered in accordance with the foregoing.