In re the Estate of Cook
OPINION OF THE COURT
In this аccounting proceeding the only issue remaining is the fixation of attorneys’ fees for Mr. Kle, as attorney for the executor, and Mr. Amrod as attorney for the guardian of an infant son. Mr. Kle originally requеsted a fee of $19,500 in Schedule C-l of the account entitled "Unpaid Administration Expenses” which was objected to. Part of the stipulation of settlement of November 15, 1978, as modified by the stipulation of December 27, 1978, provided that his fee was to be fixed on papers filed without a hearing. However, since Mr. Kle subsequently raised the amount requested by him to $45,375, a supplemental citation was required by decision of March 13, 1979 on this additional relief.
On the petition filed in connection with the supplemental citation he indicated that a total of at least 605 hours had already been expendеd by him on services rendered and that at least 40 more hours were anticipated primarily in connection with tax matters. The decision of August 23, 1979 refused to proceed with the fixation of fees, sincе all services had not been completed at that point.
On November 20, 1979 an additional affidavit by Mr. Kle covered most of those anticipated future services amounting to an additional 56 Vi hours for which he requests an additional
In fixing fees the court is required to take into consideration a number of factors including the time spent, the difficulties involved, the nature of the sеrvices necessarily rendered, the size of the estate and the results achieved (Matter of Freeman,
The requested fee is arrived at primarily on a time basis with approximately 650 hours at $75 per hour being allegedly spent. While the time spent is the logical starting point in analyzing a fee application (Matter of Chandler, NYLJ, March 29, 1978, p 16, col 3) it is not to be employed as the exclusive approach (Matter of Snell,
The objections originally filed to the accounting by Mr. Amrod, as attorney for the guardian, and Rosa Cook, the surviving spouse, were the subject of a pretrial conferenсe and stipulation made on October 26, 1977 which disposed of a number of the problems which had arisen in the estate to that date. While this first stipulation was thereafter withdrawn (see decision of May 9, 1978), it is а fact that the objections disposed of in the first stipulation were finally settled on the same terms and conditions. This included Rosa Cook’s claim that the estate should pay for certain income taxes; the claim of the infant to certain custodial property, and the claim that the decedent’s corporation was indebted to him in the amount of $16,000. Concededly, however, on the issuе of the custodial funds, services were required because of a hearing which was held before a law assistant-referee on that subject. Nevertheless, as indicated, the matter was eventuаlly settled for the same figure as arrived at in the first stipulation.
Two matters that arose subsequent to the first stipulation and not disposed of by it concern the claim of Joanna Cook to
Essentially the overriding problem was a solution to the difficulties which arose in connection with the decedent’s pension plan which amounted to approximately $220,000 comprised mostly of certain securities and life insurance. The pension plan included only two participants, the decedent and his secretary, Miсhele Wilhelm.
Eventually the Pension Benefit Guaranty Corporation took the position that since the decedent had designated the pension plan as the beneficiary of his insurance policies, and since there was no other designation other than an invalid attempt by will to dispose of his pension benefits all assets must be paid to the one remaining participant, Michele Wilhelm. The Pension Benefit Guaranty Corporation also emphasized that this court had no jurisdiction over the pension plan. Nevertheless, in subsequent conferences a satisfactory settlement was arrived at. Although for a time there may have been some anxious moments in this estate and concern that approximately two thirds of its assets might vanish, this problem also was eventually disposеd of by settlement. Moreover, Michele Wilhelm never claimed the entire pension fund and always appeared willing to come to some adjustment depending on the tax consequences to herself. Mr. Amrod, for the guardian, in his affidavit of services, pictures himself as the moving force in precipitating a settlement relating to the pension funds; however, in attacking his application for fees, all of the other attorneys, including Mr. Kle, claim that each of them had a hand in resolving this problem. Interestingly, none of them mention the efforts expended by the court itself, through its Referee, who all would presumably agree expended considerable efforts to effectuate the pension plan settlement.
The primary defense to Mr. Kle’s fee, other than that it is excessive, is thе allegation that the problems concerning the pension plan were occasioned by poor draftsmanship of the will, and that since Mr. Kle was the draftsman the woes which he faced in this estate were self-inflicted. To this is also
Although the defense is one of malpractice, seemingly sounding in tort, this court would nevertheless have jurisdiction to determine that question (Matter of Zalazinick,
While naturally any determination of malpractice and its resultant effect upon the fees requested would require a hearing, even though waived by аll parties, such a hearing does not appear necessary. All of the affidavits in opposition suggest that no more than $15,000 be awarded Mr. Kle for his fees. Mr. Amrod adds an additional $1,000 for services mоst recently rendered. The court in its own evaluation, considering all of the factors mentioned above, has come to an independent determination that the sum of $15,000 is fair and reasonable and fixes Mr. Kle’s fee in that amount for all services rendered, including the submission of a decree and implementation thereof. Since the beneficiaries who have opposed the fee have conceded at least a like fee and the result of a hearing on the malpractice issue could only serve to lower the fee fixed, the malpractice issue is deemed moot. The disbursements requested will be allowed in the sum of $542. No explanation is given as to the "witness” fee and affidavit expenses, and the balance are considered part of overhead.
Mr. Amrod adequately discharged his duties in protecting the decedent’s infant son and filed an extensive report of some 16 pages outlining all of the proceedings. He alleges an expenditure of over 230 hours of time at a rate of $100 per hour for a total fee of $14,375 with $4,875 plus $191.97 in disbursements, payable by the estate, and the balance from the guardianship estate.
In fixing the fee of a guardian ad litеm, the court employs the same factors as those applicable to fees in general (Matter of Burk,