*1 In the Matter of ESTATE OF WULF,
Raymond Willie
Deceased, Wulf, Appellant.
No. 93-1073.
Supreme Court of Iowa. 21, 1994.
Dec. *2 McCarthy McCarthy Lam- November the district & On Michael J. mers, ruled that Lucille was entitled to one-third Davenport, appellant. for Ray- the real estate in which the value of Kyle D. and Williamson Mark J. Smith during equitable interest mond held Bowman, Wells, Davenport, for McNally & marriage but which Lucille did not release. appellees-exeeutors. $16,500. This amounted to The court held claim, however, against Lucille on her second HARRIS, P.J., by and Considered relinquished right and ruled that she CARTER, LARSON, SNELL, and Lastly, question. the real estate contract ANDREASEN, JJ. attorney court held that the executor and they were in- fees were warranted since SNELL, Justice. challenge curred as a result of a to the will. resulting probate matter from a This is a challenging appealed Lucille to this court challenge brought the decedent’s to will of her con- the district court’s dismissal appealed the Lucille spouse, Lucille Wulf. Wulf, 471 tract claim. In re Estate of portion the trial court’s decision adverse 1991). affirmed following our affir- challenge, and on her Id. at 853. The the district court’s decision. mance, attorney’s awarded the trial court subsequently executors filed “Second arising appeal incurred from the Report” Amended Final which asserted trial appeals now executor. Lucille had resulted Lucille’s to our court charge the executor’s extraordi- extraordinary attorneys’ the incurrence attorney solely against her share of nary reqúested report, fees. In this the executors modify in part affirm in and the estate. We entirety of these the court assess part. estate. against Lucille’s share of the Background I. Factual report objected and second parties each be re- argued that the should 12,1986. Raymond Wulf died on December own fees because the con- sponsible for their that his estate be provided 1961 will His was distribution of the estate test over the Wulf, wife, Dorothy if distributed to his first Simpson and herself. The personal between him, and if she did not survive she survived $3,498.60 appellate requested executors him, Barry Simpson. Darwood attorney in additional $400 named co-executors Bruce Shawver were reopen the estate. fees to not men- Raymond’s The will did estate. Lucille, spouse, Raymond’s surviving tion the execu- held in favor of The trial court after he executed Raymond married whom requested fees were ruled that the tors and the will. The court also ordered fair and reasonable. solely against Lu- against take Lucille elected to that the costs be assessed pursuant to Iowa statutory share since she lost seek her cille’s share the estate challenged would 633.238 She reasoned that it appeal. Code section The court three any executors on report charge final of the of the costs unfair to First, disap- allowing that the execu- grounds. Simpson’s she asserted because share her a one-third pointed beneficiary to set aside to to reduce another benefi- tors failed they disap- legal equitable simply estates were ciary’s in all share because interest during pro- possessed would property Raymond apportionment pointed real with Second, beneficiary that she unwarranted contended with marriage. she the first vide leverage. to an undivided one-half was entitled settlement contract she proceeds a real estate in the marriage. during Raymond executed Review II. Standard fees and Finally, challenged executors’ she legal proceeding at issue of the Whether being in excess fees as of our standard ordinary equitable is determinative for the the law allows
maximum RApp.P. 4. reviewing matter. Iowa attorneys. for services of fiduciaries (1993), them required ries to act to finalize the dis- 633.33 “Nature of Code section probate,” provides: proceedings tribution of accordance with wills, trial court. decision to set aside or contest Actions appointment guardians involuntary 633.199,“Expenses Iowa Code section conservators, and for the *3 establishment services,” extraordinary governs and courts’ probate in contested claims shall be triable extraordinary attorney pro in award of fees actions, and tri- as all other matters law provides: bate matters. Section 633.199 pro- probate able in shall be tried the just are Such further allowances as and proceeding equity. bate as a court may made the to reasonable court 633.3(8) Iowa Code section defines “costs of personal representatives and their attor- attorneys’ to administration” include and ex- neys necessary and for actual extraordi- Bass, Bass v. ecutors’ fees. See Estate of nary expenses Necessary or services. (Iowa 1972). 433, 435 196 N.W.2d extraordinary services shall be construed involving proceeding of costs A include with also services connection of an not administration estate does involve estate, matters, litigated real tax mat- will, an action aside or contest a nor to set ters. involuntary it an does involve action for may legally obligate Whether an executor guardians appointment of and conservators. depends estate for on the addition, involving proceeding In a the costs peculiar of each circumstances individual not one of estate administration is for the Law, 599, case. In re Estate 253 Iowa Id.; of claims. establishment contested In re of (1962). 602, 233, 113 N.W.2d 234 We accord 693, (Iowa Cory, 696 Estate 184 N.W.2d of in tax- 1971). trial considerable discretion hearings dealing It follows with ing executor estates. In re equitable the costs of administration are Ohrt, 896, 516 N.W.2d Estate 902 nature review therefore and our de novo. 1994). Bass, 435; Cory, at 196 N.W.2d 184 N.W.2d at 697.1 pronouncement We have noted that precise governance a test for the issue this Extraordinary Attorney’s III. Award of Law, possible. all instances not 253 Fees 602, However, Iowa 113 at 234. at N.W.2d argues that court’s the trial assess- guide general factors our decision extraordinary attorney’s ment persuade area. In order-for an executor to a improper the estate was because her chal- charging attorney’s court of the lenge report to the second amended involved executor carries personal dispute between herself and exee- proving burden of he or she acted in Simpson. utor/beneficiary She contends just engaging faith cause in in the and with Simpson just justify failed to show cause Laiv, 633.315; proceedings. § Iowa Code any spe- did not award and demonstrate 602, 253 at N.W.2d at Iowa 113 235. warranting cial estate interest the additional exist, they argue just In order for cause to fees. The executors demon- just special award must strated cause the fee because executor demonstrate Laiv, dispute between Lucille in the contest. 253 Iowa at interest 602, just N.W.2d at No but rather involved the vali- 113 cause question. dation clarification of the will substantial estate exist a will interest where They dispute settling involved “narrowed to one assert that contest is down question proponents of what shares the individuals in between contes Id., 603, take role as tants.” 253 113 at would and them fiducia- Iowa at N.W.2d question Myers, 1. We that the enactment of Iowa Code sec cases include: In re Estate 238 note These (1966), Cory effectively 1103, 1106, 426, (1947); tion and Bass the extent 633.33 29 N.W.2d 427 In Iowa they earlier cases held overruled Hale, 1018, 1024, re 231 2 Estate Iowa N.W.2d reviewing proceed that the standard for 775, (1942); Dehner, 779 In re Estate 230 ings dealing with costs of administration was on 491, 656, 490, (1941). 298 657 Iowa N.W. assigned Cory, error. See 184 at 697.
157
913,
Law,
604, 113
235;
Leighton,
approval from
should bear that as- interests. contends places particular She The law on the executor portion probate make of the fees will for and to sessment duty to offer a improper penal- validity to an its of the estate amounts all efforts sustain reasonable by Hayer, 233 the trial court. The executors In re ization when contested. Estate of 1350, 593, position reasoning of 1343, adopt as their 698-99, quoted trial court. Cory, we Simpson’s grants section 633.315 thirds from share. Costs shall Iowa Code sitting probate authority paid from and two- courts in one-third Lucille’s share n taken duty Simpson’s to tax in actions to contest thirds costs from share. generally grant we or set aside will. While The decision of the trial court is affirmed taxing discretion in a trial court considerable part part. and modified Ohrt, estates, 902, fees to 516 N.W.2d at we AFFIRMED IN PART AND MODIFIED that Lucille not bear the burden find should IN PART. expense the entire occasioned her chal lenge treatment of the con executors’ except All concur Justices CARTER though Even indi tract sale real estate. JJ., ANDREASEN, specially. who concur foreseeably threaten viduals could frivolous improve their action order to settlement concurrence). CARTER, (special Justice imposing burden position, the entire fully opinion I concur of the court. as that at hand “would instances such suggest I write for a separately to the need unduly ... from question deter contestants deciding clearer standard stewardship of executors and admin litigation repre- fees incurred through proceedings brought istrators in estate sentative matters. Beach, good faith.” Estate Cal.3d *5 (1975) Cal.Rptr. 570, recognize 542 P.2d a beginning As we should (en banc). benefit to the estate an elusive element satisfactory guide not a for often is The evidence does not demonstrate that many deciding propriety litigation. brought challenge to instances-, representative’s fiducia- leverag- faith or with mere intent of bad duty ry requires put to that claimants be An position. her settlement individual proof irrespective their the bene- whether appeals a trial who faith court deci- fits of inure of a that action will to the benefit pe- sion rendered her should not be particular or than distributee claimant rather by carrying nalized the entire burden of the the estate as a whole. costs. therefore hold that the associated extraordinary attorney properly fees are Secondly, considering charged to the and are one- assessed litigation recognize expenses, we should that third Lucille’s share two-thirds personal representative empowered Simpson’s share. engage litigation under Iowa Code section empowerment necessarily 633.81. car- This request The also that executors right ries with it the counsel. If the hire appellate we deal with of the fees the issue litigate considering decision to is reasonable juncture. appeal with this at this associated fiduciary personal representa- role of the They request them that we award $1860 tive, (a) fiduciary’s fact that then the charged this amount be order entire litigating position favors one set of distribu- against Lucille’s share of the estate. Ordi (b) another, fiduciary’s tees attor- over expense narily appellate attorney ney disproportionately fees will reduce the court, fixed as would be the trial was done share of estate certain distributees does appeal. procedure That after Lucille’s first justify ordinarily either a of the reduction 2(c) under Iowa of Probate Rule Procedure attorney reasonably otherwise incurred prompted appeal. the instant shifting payment those fees from Notwithstanding, prevent in order circular general litigating of the to a assets appeals, we elect to determine award of distributee.1 attorney appeal. on the instant The for fees incurred the executor this those instances when it is shown that paid engaged in a representative are fixed to be from estate has $1860 assets, share, fiduciary duty pur- by improperly one-third from Lucille’s two- breach of shifting Roggen payment persons entity This occurred in In re Estate from than the other tien, and, App.1989), satisfactory This is solu- as hired them. not a consequence, lawyers were directed to look tion. remedy objecting litigation, suing ordinarily be a direct sur-
parties should
charge against personal representative than a
rather reduction upon the reasonable in amount based
are actually performed.
services
ANDREASEN, J., joins special
concurrence. JAHNKE,
Kathy Appellant, Sue
v. JAHNKE,
Jeffrey Appellee. George
In the Matter of the ADOPTION TRISLER, Wayne
OF Robert
Jeffrey Jahnke, Petitioner. G.
No. 94-475.
Supreme Court of Iowa.
Dec.