Opinion
No. 33157
Decided April 29, 1953.
Executors and administrators — Allowance of attorney fees for ordinary services — Section 10509-193, General Code — Reasonable value determined, how, where contested — Application of predetermined percentage formula not controlling — Evidence — Attorneys' time charge records — Testimony elicited on cross-examination of attorneys.
APPEAL from the Court of Appeals for Lucas county.
The executors of the estate of Arthur S. Hickok, deceased, instituted this proceeding in the Probate Court by the filing of an application for an order to pay to attorneys for the executors, as a part of the expense of administration, the sum of $16,905.44 on account for ordinary services and $25,284.50 for extraordinary services in litigation. These amounts requested are in addition to the sum of $106,285.04 previously paid out of the estate to the same attorneys on account for ordinary services.
The application was opposed by decedent's widow and daughter.
At the hearing, no statement of the ordinary services rendered by the attorneys for the executors during the administration of the estate or of the value placed by such attorneys on those services was presented to the court in support of the application. However, a detailed statement of the extraordinary services was submitted. Those opposing the application offered, as evidence of the nature, extent and value of the ordinary services, a transcript of the time charge records of the executors' attorneys (exhibit 2). The court refused to admit the transcript and sustained objections to questions on cross-examination of executors' attorneys as to the nature and value of the ordinary services rendered, on the ground that the transcript and questions were not material.
The Probate Court ordered paid out of the assets of the estate to executors' attorneys $8,450 as final payment for ordinary services, and $15,000 for extraordinary services in litigation. The assets involved totaled $6,308,922.33, of which $845,272 was the appraised value of real estate. In fixing the fee for ordinary services, the court applied the fee schedule promulgated by the judge of the Probate Court and approved by the local bar association but not formally journalized as a rule of court.
On appeal to the Court of Appeals, the judgment was affirmed.
An allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Kirkbride, Cole, Frease Mittendorf, for appellees.
Messrs. Fuller, Harrington Seney, for appellants.
The appellants, widow and daughter, assign as error the exclusion of evidence offered by them "concerning the nature, extent and value of the ordinary services rendered during administration of the estate by the attorneys for the executors; more specifically, in refusing to admit in evidence (a) opponents' exhibit 2 and (b) cross-examination of attorneys for the executors as to ordinary services rendered," and the application of "a predetermined formula of percentages of inventory values of assets to fix the amount of fees payable from estate assets to attorneys for the executors for ordinary services during administration."
The decedent, by his will, empowered his executors to employ attorneys "and pay their reasonable compensation and expenses." Section 10509-193, General Code, relative to the payment of attorney fees for services rendered during the administration of an estate, provides that, "when an attorney has been employed in the administration of the estate, reasonable attorney fees * * * shall be allowed as a part of the expenses of administration."
It will thus be seen that both the will and the statute authorizing the payment out of the estate of attorney fees for services rendered in the administration of the estate provide for the payment of reasonable fees. Where, as here, a judicial determination is required to fix the amount to be thus paid, the determining factor is the reasonable value of the services. This determination cannot be arrived at in a controverted case solely by the application of a predetermined formula of percentages of inventory values.
Exhibit No. 2 proffered by appellants sets forth the ordinary services rendered by the attorneys for the executors in the administration of the estate, the date on which each item of service was rendered, the identity of the attorney performing that service and the time consumed in rendering it. The cross-examination excluded by the court was for the purpose of eliciting additional information concerning the nature of the ordinary services rendered and the value of those services. The excluded evidence was material and relevant to the determination of the issue before the court, and its exclusion was error, prejudicial to the appellants.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Probate Court for further proceedings according to law.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.