361 S.W.2d 753 | Ark. | 1962
Lead Opinion
This is the third appeal involving some phase of the Ward Millard Black estate. The first two cases involved the validity of a purported will of the decedent.
The present appeal stems from an order of the Pulaski County Probate Court, allowing attorney fees of $2,500 to appellees for services rendered in representing Clio Thompson, administratrix of the estate of Black. It might he here pointed ont that appellees only asked for fees for representing the estate, and not for defending the will. Appellant, Walter L. Black, Jr., a nephew of the decedent, and sole heir of the estate,
“When any person nominated in a will as executor or the administrator with the will annexed, in good faith defends it or prosecutes any proceedings for the purpose of having it admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements including reasonable attorney’s fees in such proceedings.”
Appellant maintains the key language of the statute is “in good faith,” and asserts that the record shows that Clio Thompson, as a proponent of the forged will, did not act in good faith.
In the first place, we do not agree that the allowance of the attorney’s fee is dependent upon the good faith of the administratrix,
However, as stated at the outset of the preceding paragraph, we do not consider that the “good” or “bad” faith of Miss Thompson in offering the will for probate, is controlling as to the allowance of the attorneys’ fee. Bather, we think the fact that these attorneys were appointed by the court to represent the administratrix of the estate, and thereafter rendered service in behalf of the estate, entitles them to remuneration. After all, once they were appointed, the duty of advising the administratrix, and performing necessary functions in behalf of the estate, was incumbent upon them, and they were accountable to the court for the manner in which they discharged those duties. If the probate court has the authority to appoint attorneys (and it has such authority), then, certainly, it has the power to recompense them for their services. The probate court would be indeed impotent if it were powerless to compensate those that it has appointed, to perform certain functions. We are not here concerned with any contract that might have been entered into between appellees and beneficiaries under the purported will; we are only concerned with the acts of the attorneys in representing the administratrix, and the estate, as directed by the probate court. The amount of the fee allowed by the court is not questioned by appellant; he simply insists that no fee at all should be granted. The record reflects that appellees were appointed attorneys for the estate on June 21, 1960, and they have served as attorneys for the estate since that time. When Miss Thompson was authorized to take charge of the drug store on that date, she found that appellant, former administrator, had surrendered the drug and narcotic permit, and it was, of course, necessary that another be obtained. According to her testimony, the lawyers worked two to three weeks assisting in negotiating with the proper authorities for restoration of the permit. She stated that she sought the advice of the attorneys once a week in administering the estate,
Appellees have cross-appealed, contending that they are entitled to a fee of $7,000 under the provisions of Sub-section (d) of Section 62-2208, 1961 Supp. That section sets out the fee that shall be allowed to attorneys, basing same on the market value of real and personal property reportable in the probate court. Appellees (cross-appellants) assert that provisions of this statute are mandatory. We are not here required to decide whether the legislature can establish mandatory fees — thus taking away all judicial discretion, because the section relied upon also provides, “the attorney so employed shall prepare and present to the Probate Court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports and all other proper and necessary legal instruments * # * and for said
Affirmed on both direct and cross-appeal.
For a detailed discussion of the facts, see Black v. Morton, Law Reporter of February 27, 1961, 343 S. W. 2d 437, and Black v. Morton, Law Reporter of December 18, 1961, 352 S. W. 2d 177.
Walter L. Black, Sr., a brother of Ward Millard Black, died during the pendency of the will contest. The estate is valued at over $100,000.
Of course, no fee would be allowable to the administratrix unless the will was offered for probate in good faith.
The record in the first case (made a part of the record herein) discloses that Miss Thompson holds a Bachelor of Arts degree from College of the Ozarks, a Master’s degree from the University of Arkansas, and 30 hours graduating credit from the University of Oklahoma and Northeastern State Teachers College. During the war, she was with the War Department as an instructor in the Armed Service Forces Technical Command. She has also worked for the United States Treasury Department and in the Comptroller’s Division of Douglas Aircraft Corporation.
This would roughly total about seventy-five conferences.
Emphasis supplied.
Dissenting Opinion
dissenting. The attorneys who are now demanding a fee from the estate represented the proponents under a contingent fee contract which would have entitled them to a fee of about $35,000 if the will had been upheld. If, however, the will was declared to be a forgery, as proved to be the case, they would receive nothing.
I think the contracting parties evidently intended that the attorneys’ compensation be governed solely by the contingent fee contract. If the validity of the will had been sustained the attorneys would have been entitled to one-third of the estate for their services. 1 am unable to believe that they would have demanded, much less have been entitled to, an additional fee for representing one of their clients in her capacity as administratrix.
But the will was found to be a forgery. Since the lawyers were to receive no extra compensation for representing the administratrix if the will had been upheld, it should follow that they receive no such extra compensation if the will be rejected. Otherwise they are in the position of collecting a contractual fee from their clients if they are successful in defending the will and of collecting a non-contractual fee from the appellant, as the sole beneficiary of the estate, if they are unsuccessful. The plain result of this view of the law is to encourage the tender of a forged will in every instance, for its proponents have everything to gain and nothing to lose.