43 N.Y.S. 945 | N.Y. App. Div. | 1897
The defendant, William L. Moore, is administrator with the will annexed of. Harriet Gross, deceased, of whom John L. Gross is a brother. Mr. Gross brought this action against Moore, the ■ administrator, and others, who are next of kin and legatees of Harriet Gross, asking for the construction of certain clauses of her will, and that the defendant Moore, as administrator, should be compelled to account as such.. There was a trial upon issues which were raised by the answer. A judgment was entered upon the decision construing the will and- directing the administrator to account before , a referee to be appointed. That judgment having been affirmed, the administrator filed his account; a referee was appointed before whom the exceptions to the account were heard; the account was approved by the referee, and the administrator was allowed for all the payments which he claimed to have made. The report of the referee was confirmed and final judgment entered 'upon it, from which the plaintiff takes this appeal.. The sole question raised upon the appeal involves the propriety of the allowance by the referee of thé total which the administrator claims to have paid for legal services in behalf of the estate during its administration. This amount, as paid by him, was $17,30.7. It contained $342.14 of disbursements, and it appears from the account that the administrator had also paid to the same attorney who received the $17,000, $1,000 as a retaining fee, so that the total amount paid out for legal services in' the course of the administration of this estate was $18,307. Substantially all the services included in this sum of $17,307 were rendered by a single attorney in three different proceedings. The bill of the attorney, which is set out in full in the case,, does not con
The fact that the case is in this condition has imposed upon us the burden of examining with more particularity then would otherwise be necessary, the evidence in the case, as well as the various . records which were produced upon the hearing before the referee, and which we have examined, to enable us to decide intelligently whether this conclusion of the referee is correct.
We find that, practically, all the services paid for were rendered in three proceedings, the first of which was the probate of the will of Miss Gross. ' The will having been presented for probate, objections were filed to it, which involved the testamentary capacity of the testatrix. A long hearing was had before the surrogate, which resulted in the will being admitted to probate. An appeal was taken from his decree, which was affirmed by the General Term. At that point the proceedings seem to have ended.
Most of the witnesses who were sworn as experts upon the hearing before the referee, and who gave testimony about the value of the services, stated simply that, in their judgment, all the services together were: worth a certain sum. One or two of them undertook to separate the value of the services rendered in the different proceedings, but the testimony of no one of ‘them, in his effort to do so,, is particularly satisfactory.
In judging of the value of legal services it is proper to consider the time occupied by them; the difficulty of the questions involved;, the nature of the services rendered •: the amount involved in the litigation; the professional standing of the counsel who claim pay -for services, and, to some extent, the result which has been reached. It is apparent that the last consideration can bear little, if any, upon the amount of work which has been done, but yet it is always accepted as a proper element to be considered in reaching the value of the services which have been rendered; and for that reason, while it is entitled to but little weight, yet it must not be forgotten. Taking all these into consideration in regard to the will case, we have concluded that the executor should have paid no more than $5,000 to his ¡attorney and counsel in that matter, and this we regard as a very liberal charge for the services which were rendered to him therein. In fixing the amount at that sum,.it is to be remembered that none of his disbursements is included, all those disbursements
The next services rendered, in which a charge is made, were in the case of Oliver v. Gross. This is an action brought by one Oliver upon a written contract between herself and Miss Gross, the testatrix, by which she leased to Miss Gross in writing certain rooms in the lessor’s lodging house on Fifth avenue, for a certain time, at a price stated in the lease. The lease also contains an agreement that Mrs. Oliver was to board Miss Gross and her maid for the term of the lease, the price of the rooms and board being fixed by the lease. It seems that Miss Gross died before the expiration of the term, and a claim was made by Mrs. Oliver for the amount of the rent for the full term. This was resisted by the administrator. Upon an accounting before the surrogate it was arranged between the parties that one-half of the claim should be paid by the administrator to Mrs. Oliver, leaving the remainder to be collected by litigation, if she saw fit to attempt it. She did attempt it, and brought her action to recover the remainder of • the amount to which she claimed to be entitled. The making of the contract was not disputed. That there was some liability was not denied. The only question was, therefore, whether the estate was liable to pay more than the amount which had already been paid as the result of the arrangement before the surrogate. The full amount claimed by Mrs. Oliver was something over $1,100. This litigation, presenting so simple a question as this, Was made to involve three trials in the Circuit, three appeals to the General Term and one appeal to the Court of Appeals, and the estimate of the value of the services rendered to the defendant in that action in defending a claim of $1,100 against this estate is something over $3,000. This statement of facts shows that there is something intrinsically wrong about the whole matter. That an administrator should be permitted to subject his estate to so great an expense in litigating its liability to pay . an amount only equal to one-third of the fees seems somewhat absurd, and, unless some extraordinary circumstances occur, certainly it should not be permitted. Upon examination of this case, we find that upon the first trial a verdict was had for the plaintiff, and the exceptions were ordered to be heard in the first instance at the General Term. This was done and a new trial was granted upon the
The third litigation which is in question is the one in which this appeal has been taken. A few words will dispose of that. The action was brought to construe the will of Miss Gross. It was claimed that the residuary bequest was invalid. That bequest was of the residue, to the executor, to be distributed by him according to the instruction given to him by the testatrix. Ho valid instructions were ever given. The respondent here claimed that because no valid instructions were ever given the original executor took the residuary bequest absolutely, and that this respondent, under the will of the original executor, was absolute owner of one-half of it. The plaintiff, with the other next of kin of Miss Gross, claimed that
The attorney stated upon his examination that he had given the executor from time to time advice in regard to the management of the estate, and upon such incidental legal questions as arose in that behalf. The value of those services he did not attempt to fix. Inasmuch as it appears from his statement that lie.had received the sum of $1*000 as a retainer, and it is fair to infer from his receipt that he had been paid some other sums in addition, we are inclined to think that the retaining fee and the other payments made to him, if there were any, are large enough to fully pay him for such incidental services as he may have rendered, but the value of which he did not state. The bill contains some account for disbursements which should be allowed as made.
' Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs to either party.