272 Pa. 8 | Pa. | 1922
Opinion by
Elizabeth. Wood, of Washington County, died testate on June 23, 1919, leaving an estate of about $10,000, mostly in personalty. E. H. Meloy, Esq., of the Washington County Bar, had been acting as her attorney in fact and legal advisor for over three years. He looked after her property, transacted her legal business, including the drawing of her will, in which he was named executor and his compensation as such was fixed at $500. Among the securities held by Mrs. Wood was a $2,800 mortgage on a house and lot at Wilkinsburg, owned by Marie Orr, who rented the property through John L. Hoffman, a local real estate agent; but the net rent was not sufficient to pay the interest on the mortgage. Miss Orr, after some negotiations and shortly prior to the death of Mrs. Wood, turned over the property in consideration of the mortgage debt, the deed being taken in the name of Meloy, to avoid a possible merger, but in reality for Mrs. Wood. Meloy qualified as executor and, being in doubt as to the value of the Wilkinsburg property, caused the mortgage thereon to be appraised at $2,000. During the summer and fall of 1919, he made an honest but unsuccessful effort to sell the property so as to realize the amount of the mortgage, but in December a Mrs. Thomas, through Hoffman, made an offer of $2,400 and agent’s commission for the house and lot, which Meloy in good faith and acting with reasonable prudence accepted, received $100 hand money and entered into a written agreement for the sale of the property, and in the following March it was consummated by deed, payment of purchase money and satisfaction of the mortgage.
Mrs. Mary Gregg, the appellant, was the residuary legatee and devisee under Mrs. Wood’s will; as such she came to Meloy in January, 1920, and objected to the consummation of the sale to Mrs. Thomas, expressing a desire to accept the Wilkinsburg property in kind. However, Mrs. Thomas declined to release her claim and ap
While Meloy held title to the Wilkinsburg property in his own name, he did so in fact as trustee for decedent and as such charged himself with all he received therefrom. Exceptant took no legal steps to prevent the consummation of the sale, and, as held by the orphans’ court, ratified it by proceeding to surcharge accountant with an alleged loss thereby sustained; hence, the power of Meloy to make the sale is not here involved; while the real question is, Was he therein guilty of such misconduct as to fasten upon him a personal liability? This must be answered in the negative. “All that a court of equity requires from trustees is common skill, common prudence and common caution. Executors, adminis
The $500, claimed as executor’s commission, was provided in the will, was less than five per cent of the estate and was properly allowed, as nothing appears to justify withholding compensation from accountant.
The. allowance for services of counsel in settling an estate is largely a matter for the court below (Com. v. T. & M. Bank of Pittsburgh, 268 Pa. 526; Traction M. Co. v. Pgh., M. & W. Ry. Co., No. 1, 261 Pa. 153, 161; New York Trust Co. v. Pullman Mfg. Co., 237 Pa. 261), and the $150 here approved for that purpose does not disclose an abuse of discretion, nor violate the rule that
Tbe allowance of $480 to accountant, as a balance for legal services rendered tbe deceased in her lifetime, rests on different ground; as to that Meloy is merely a creditor of the estate, and, his claim being challenged by exceptant, the burden of proof is upon him: Com. ex rel. v. Monongahela Val. Bank, 239 Pa. 254; Traction M. Co. v. Pgh., M. & W. Ry. Co., supra. What testimony there is on this question is that of Meloy and his stenographer in a very general way to the extent and nature of his services, and also a copy of his correspondence with and for decedent. There was no agreement as to compensation and no evidence as to the value of the services rendered, except what might be gathered from their general character. The learned president judge of the orphans’ court, however, fixed their value on the ground that as a member of the profession he was competent to do so. No one doubts his competency, and, if it was a question of fixing the fees of counsel for services rendered in the settlement of an estate, or other matter under the eye of the court, his right so to do might be conceded. However, this is the ordinary claim of an attorney for services, in the nature of a quantum meruit, where he must prove what he did and its value (6 Corpus Juris, p. 759; Allen v. Gregg (Pa.), 16 Atlantic Reporter 46, 48); while he offered some evidence as to the former he offered none as to the latter; hence, the allowance of the claim was error. A recovery in the orphans’ court as elseAvhere must be founded upon evidence and, except in special cases as above mentioned, judicial notice cannot be taken of the value of an attorney’s services : 16 Cyc. 858, section 12 and note 95. A court will only take judicial notice of a matter of common and general knowledge (15 B. C. L., p. 1058) which the value of legal services is not. “A lawyer may bring suit for Ms fees, but his cause is to be tried like the causes of
At the audit, accountant was first called as a witness by exceptant and cross-examined at large as to matters occurring before and after the death of decedent; this made him a competent witness for all purposes and the court below properly so ruled. Moreover, when recalled in his own behalf, there was no objection made as to his competency; therefore, accountant’s testimony was properly before the auditing judge and the belated exception taken thereto is without merit.
The $480 credit, allowed accountant for legal services rendered by him to the decedent in her lifetime is stricken out, and, as thus modified, the decree is affirmed at the costs of the estate.