136 Mich. 406 | Mich. | 1904
This case comes before us for review of the account of Henry F. Marx, administrator of the estate of Albert Meswald, deceased. The account was. presented in the probate court and allowed, whereupon Henry McMorran, administrator of the estate of Sarah C.
The record is voluminous, containing, as it does, the entire testimony taken on the trial. The briefs discuss-numerous questions, but, as it was practically conceded by the appellant in his reply brief that the only question which we need consider is the question of the allowance of attorney fees to Mr. Muir and Mr. Pinney, we will, limit our discussion to such questions as bear directly upon, the points presented affecting the amount of the allowance.
It appears that Albert Meswald and his wife, Sarah C. Meswald, were both aboard the propeller Wokoken when she foundered on Lake Erie, October 14, 1893, and that both perished in this disaster. As to which died first is not now necessary to determine. On October 21, 1893, John Mitchell, a brother of Sarah O. Meswald, was appointed administrator of the estate of Albert Meswald by the probate court of Cuyahoga county, Ohio, upon a petition which alleged that the decedent was domiciled in St. Clair county, Mich., at the time of- his decease. Letters were issued authorizing Mitchell to administer upon the estate of the decedent situated in the State of Ohio. O. C. Pinney, a lawyer at Cleveland, was then employed as attorney of Louis Meswald, an uncle of Albert Meswald, to look after the interests of Meswald. It was through Pinney that the services of Mr. Muir, of Port Huron, were enlisted, and from this date a legal contest has been, waged between the heirs of Albert Meswald and the heirs of Sarah C. Meswald.
Among other steps taken by the heirs of Albert Meswald, the appointment of a general administrator by the
It would be as tedious as the counsel on either side were apparently untiring for us to pursue in detail in this opinion, step by step, the various motions, cross-motions, appeals, and trials which were entered upon having in view the end of transferring this fund to Michigan, where it unquestionably belonged. On the one side it is averred that Mr. Pinney and Mr. Muir engaged in useless litigation, were unnecessarily and unusually active, and that the result might have been reached without incurring the large expense to the estate with which it is now sought to charge it. We agree that the finding of the circuit judge that there is some justice in this claim is correct. The result might have been reached more directly. On the other hand, it is beyond question that Mr. Mitchell and his counsel placed in the way of Mr. Pinney and Mr. Muir obstacles at almost every step, and waged an unjustifiable contest against their efforts to secure the transfer of this fund to Michigan. The circuit judge found that Mr. Pinney and Mr.' Muir dictated who should be appointed administrator, and found that Mr. Pinney and Mr. Muir were never employed by either of these administrators, Gilchrist or Marx, in such manner as would bind the administrator personally, or in any such manner as should equitably bind the estate, except as specifically set forth.' He further found that an administrator is not interested in any contest between heirs; that the question as to whom the estate ultimately goes is not one that interests the administrator; but that successful litigation, although instituted for an heir, or under such circumstances that the heir might be primarily liable, may in some instances be a proper charge against the estate; and
The only question that has given us trouble is the question what would be a reasonable allowance, taking into account the amount of the estate and the character of the services rendered. The counsel for the appellant concede the propriety of the court taking into account the amount of the estate in determining the amount of charges which should be fixed. As the evidence is undisputed as to the services rendered and expenses incurred, it only remained for the court to determine what a reasonable and proper .allowance should be in each case.
The allowance made to Mr. Muir was $351.25. This allowed him for the bare time employed in the trial of a •case at Cleveland, without any allowance for preparation •of brief. It excluded one item of services at Marine City, and expenses. We think that this allowance should be increased $88.50, making the allowance to Mr. Muir $439.75 for services and expenses.
There was allowed to Mr. Pinney for services in preparation for trial, seven days, and all the expenses incurred, and time in taking depositions, in preparation of preliminary brief, charges paid to witnesses, stenographer, etc., •on this trial, the meager sum of $100, the expenses alone .amounting to $51.68. The servicesfor this protracted contest were reasonably worth $250. There was also charged by Mr. Pinney, for services in contesting the final account •of John Mitchell, administrator, and expenses, $300. The finding of the circuit judge treats $150 as a reasonable
The order of the circuit judge will be modified. Th& allowance will stand, as stated: To Henry F. Marx, $339.96; on accountof James A. Muir’s services, $439.75;, on account of the services of O. C. Pinney, $746.68; and,, as so modified, will stand affirmed. The costs of the proceedings in this court will be chargeable against the estate.