Friedenwald v. Burke

⁵¹³ Thomas, J., delivered tlie opinion of the Court. This is tlie second appeal in this case, and it is only necessary to state briefly the circumstances under which the controversy arises. Joseph Eriedenwald died in December, 1910, leaving an estate of about four millions of dollars. After his death three wills were found, one dated December, 1910, one April, 1903, and the other August, 1875.

A caveat was. filed by some of Ms children to the will of 19.10, and a long and vigorously contested trial of the issues resulted in a verdict in favor of the caveators. The will of 1903 was then offered for probate in the Orphans’ Court of Baltimore County, and a caveat- thereto was filed by some of the children of the deceased against his other children and his grandchildren. In answer to the petition of the caveators- the -caveatees stated: “These respondents further say that the said Joseph Eriedenwald left what purported to be a last will and testament, dated the 12th day of December, 1910,' which was probated in common form in this Court but upon caveat being filed and issues being framed, it was determined by a jury sitting in tlie Circuit. Court for Baltimore County, that the said will was invalid because the said Joseph Eriedenwald was at the time of its execution not of sound and disposing mind, and did not understand the contents thereof.

Although these respondents are legally bound by the verdict of the jury and the judgment of this Court thereupon, still they believed then and believe now notwithstanding said verdict. that the said Joseph Eriedenwald was of sound and disposing mind at the time he executed the will of December 12th. 1910, and understood the contents thereof; that he was just as competent to make a will on December 12th, 1910, he was on April 24th, 1903, and that, therefore, those respondents do not believe that the will of .1903 expresses the real and final intentions of their father and grandfather with respect to his property, and they are not interested in defending it; but inasmuch as all the charitable' and small ⁵¹⁴ pecuniary legacies will be paid by tbe family of the said Joseph Friedenwald, even though the will of 1903 is set aside, the only persons who might be interested in sustaining the will of 1903 are the grandchildren of the late Joseph. Friedenwald, and their descendants, born and unborn, who have contingent interests under said will, and those interests should be represented by some person appointed by the Court to defend the will, at the cost of the estate^ to the extent that such person, in the exercise of his independent judgment, in view of all the circumstances of the case, shall deem proper.” On the 9th of January, 1913, the Orphans’ Court passed the following order: “Maryland, set.: The State of Maryland — To all persons to whom these presents shall come, Greeting: Know ye that Joseph Friedenwald died leaving an alleged will dated April 24th, 1903, which has been offered for probate in this Court and a caveat has been filed thereto, and that someone should be appointed by this Court to defend the said alleged will, at the cost of the estate, in the interest of the grandchildren of the said Joseph Friedenwald and their descendants, born and unborn, who may have contingent interests under said will, to the extent that such person in the exercise of his independent judgment in view of all the circumstances of the ease shall deem proper. Therefore Edward H. Burke is hereby appointed a special administrator pendente life charged however with the sole duty of defending the said alleged will, to the extent that he in his independent judgment shall deem proper and to secure for it admission to probate if that is attainable on full and fair investigation, and these shall be his letters therefor which are hereby granted to him.” Issues were sent to the Circuit Court for Baltimore County for trial, and the verdict of the jury being in favor of the caveators on the issue of undue influence the will of 1903 was set aside Thereafter Edward II. Burke, Esq., special administrator, filed a petition in the Orphans’ Court setting out the services he had rendered as special administrator and as attorney in ⁵¹⁵ defending the will, and praying that the administrators, c. t. «., he required to pay him such sum as the Court determined was a reasonable compensation for such services.

There was filed with the petition the certificates of a number of prominent members of the bar to the effect that they were familiar with the services rendered by the petitionei', and that $15,000.00 was a reasonable and proper compensation for same, and on the same day, July 10th, 1913, the Court passed an order directing the administrators, c. t. to pay the petitioner that sum* “for the services rendered by him to said estate as special administrator pendente lite.” The administrators, c. 1. a., filed a petition excepting to the allowance on the ground that it was excessive and unreasonable, and praying the Court to rescind said order. At the same time they presented to the Court the form of an order suspending the payment of the amount which the Court refused to sign, and they then appealed from said action of the Court and from the oi’der of July 10th. On appeal wo remanded the case, without affirming or reversing the order of the 10th of July, in order that the exceptions to said allowance might he set down for a hearing and disposed of by the Orphans’ Court after the parties had an opportunity to offer evidence in support of their respective contentions. In disposing of the case as then presented, Chief Judge Boyd, speaking for the Court, said: “We are of the opinion then, that the Orphans’ Court had the power to appoint the appellee, and we can have no doubt that they have the power to grant him such reasonable compensation as the services rendered by him justify.

The answer of the appellee to the caveat of the will of 1903 suggested the appointment of someone, and the language of that answer was practically adopted in the letters— amongst other things», that some one be appointed ‘at the cost of the estate.’ As Mr. Burke was an attorney, it was undoubtedly intended that he should act as the attorney in defending the will, as otherwise the Court would have provided for his employing some other attorney. The record ⁵¹⁶ is not very clear as to that; but we take it for granted that the answer filed by the appellee to the petition of the caveators and the other proceedings taken by him were all done in his name as special administrator, and hence he must have acted in both capacities. But, as he did not have charge of the assets of the estate, and could not have been made responsible for -them, or any of them, his great responsibility and his real services were those of an attorney, and, in allowing him compensation for his services those facts cannot be ignored. * * * The appellee should be allowed a proper and reasonable compensation for such services as he rendered as special administrator, keeping in mind the facts we have already alluded to, and for such as he rendered as attorney. One of the most delicate duties Courts are called upon' to perform is that of fixing the amount of compensation of attorneys in cases in which they are entitled to be paid out of an estate or fund before the Court.

It would be difficult to lay down a general rule, to be followed in all cases where such compensation is to be allowed, beyond saying that it must be reasonable and fair. In this case there is a certificate of nine attorneys referred to above, and the Court fixed the amount recommended by them. While a certificate signed by responsible and leading members of the bar is entitled to great weight, it is, of course, not conclusive, and, when an ex parte order has been passed fixing the compensation of an attorney, and those interested in the estate promptly object to the allowance, on the ground that it is excessive and unreasonable, and ask that the order allowing it be rescinded, they are entitled to be heard.” When the case went back to the Orphans’ Court evidence was produced by the appellee tending to show that the allowance was a proper and reasonable one, while the appellants offered evidence to show that it was excessive and unreasonable. After considering the evidence the Court below passed an order confirming its previous order allowing $15,000.00 as a reasonable compensation for all the services rendered by ⁵¹⁷ flic appellee, as special administrator and as attorney, from which order the administrators, c. t. a., have again appealed, and we are now called upon to discharge that delicate duty n> which allusion was made on the former appeal.

In determining the question of what is a fair and reasonable compensation to an attorney for his sendees in any particular case a consideration of the character and extent of those services, the importance of the case and the amount involved is essential to a proper conclusion (Miller v. Gehr, 91 Md. 709 ; De Bearn v. Winans, 115 Md. 139 ; Heating Co. v. Whitelock, 120 Md. 408 ; 4 Cyc. 1001, 1004), and as said by the Court in National Bank v. Dulaney, 96 Md. 159 , such a question is not to be decided simply according to the arbitrary individual opinions of those constituting the trying tribunal. The judicial mind must have respect to the evidence offered for its instruction and’guidance.” Mr. Burke states that according to his understanding of his letters it was for him to determine, after an investigation of the facts and an examination of the law, whether the caveat should be resisted or he should allow the will to be set. aside in the Orphans’ Court; that he accordingly secured from counsel for the caveatees a copy of the evidence produced at the trial of the caveat to the will of 1910, consisting of two thousand typewritten pages; that after a careful reading and study of this evidence, and an examination of the authorities lie decided that Mr. Friedenwald was capable of making a will in 1903, and as he had been informed by counsel for the caveators that the ground upon which the will was to be attacked was “testamentary incapacity,” he notified counsel for the caveators of the conclusion lie bad reached and advised them that there would have to be a trial of the case, and that he filed an answer to the caveat as special administrator : that in March counsel for the caveators advised him that they wanted to try the case the following Tuesday in the Orphans’ Court, and that lie told them that he did not think he could agree to try it in the Orphans’ Court, that it ⁵¹⁸ would look like collusion to do so, but that he would think it over; that he then consulted Mr. Peach, one of the officials of the Orphans’ Court, and he advised him to try the case in the Circuit Court before a jury, and that he then wrote counsel for the caveators that he would “insist on a trial before a jury,” and would prepare issues, and that if he wanted to try the case promptly and would come out to Towson as soon as Court met he would be glad to arrange it; that a few days later counsel for the caveators came to see him and told him that inasmuch as he insisted upon a trial before a jury they would abandon the caveat and would dismiss it as soon as they could see one or two of their clients; that some time later counsel for the caveators came out to Towson and said they were going to try it; that he prepared and filed the petition for issues, and at' the same time “submitted a form of issues”; that he, Mr. Gans and Mr. Harley finally agreed upon the issues that were to be sent to the Circuit Court, and arranged with Judges Duncan to have the case tried on the 30th of June; that he then, in preparing for the trial, made a very careful examination and study of all the Maryland cases, went to see and talked with a number of witnesses, and was fully prepared to defend the will from an attack on the ground of testamentary incapacity, which was the ground that he understood was the one on which the contest was to be made. At 1he trial of the case in the Circuit Court, which occupied about two days, the Court granted the prayers offered by Mr. Rurke directing a verdict for the caveatees upon all the issues except the issue of undue influence. The appellee states that there was nothing in the evidence produced at the trial of the caveat to the will of 1910 to suggest that undue influence had been exerted on the deceased, and that at the trial of the issues relating to the will of 1903 ho was not prepared to offer any evidence in rebuttal of the evidence offered by the caveators showing that the will had been procured b\ undue influence; that the parties who were charged with ⁵¹⁹ having exerted such influence were three of the eaveatees, one of who was, at the time of the trial, in Europe, and all of whom were in favor of setting aside the will; that they were the only persons by whom such evidence could have been contradicted, and that after giving the matter careful consideration, he concluded that it would he useless to call them because he did not believe that they would contradict the evidence adduced by the caveators, and that therefore the only tiling he could do, so far as that issue was concerned, was to cross-examine the witnesses and submit the case on the evidence produced by the caveators.

TTuder the will of 1903 the estate was to be held in trust by the executor during the life of the testator’s wife, who was to receive $8,000.00 annually. The trustees were directed, after her death, to pay to each of nine of the testator’s children, not including Mrs. Selz and .Mrs. Brager, $30,000; $10,000 to each of three grandchildren, children of a deceased child; the income from $20,000 to his daughter, Mrs. Selz, and $1,000 to each of the children of his daughter, Mrs. Brager, living at the time of the death of his wife. The seventh clause directed that after the expiration of five years from the death of his wife, and until twenty-one years after her death, the trustees, should pay one-half of the income from the residue of the estate to such of his children and their descendants as were living at the time of the accrual of said income, and upon the expiration of said period of twenty-one years, distribute the corpus of the estate to such of his children and their descendants as were then living, and provided that his daughters, Mrs. Selz and Mrs. Brager, and their descendants should he excluded from the provisions of said clause. Mr. Burke says in