Kenny v. McAllister

Markell, J., delivered the opinion of the Court. This is an appeal from allowance to appellees of $1,500 for legal services to the estate administered by appellant as executor, in the lower court and in this court, in Kenny v. Peregoy, 196 Md. 630 , 78 A. 2d 173 . Without restating the facts or the nature of that case, we refer to our opinion. Appellant, brother of his testatrix, was his own only witness in the instant case.

He is a member of the bar, but has a Government position in Washington and has not practiced law since 1932 and 1933. The estate was appraised in the Orphans’ Court at $6,551.70, including leasehold property, bequeathed to appellant, at $5,000. An auctioneer and real estate dealer testified that it is now worth $8,000. It is occupied by two tenants who are paying rents amounting to $85 a month, one of them a “nominal” rent of $30 paid by a brother of appellant. ⁵²³ The testatrix died on October 8, 1947.

If in the Peregoy case the husband had prevailed, his share would have been $2,000 plus one-half of the surplus, i.e., about $4,250 at appraised value, or $5,750 at enhanced value, in either case plus half the net income, for four years to date, less half the cost of administration. We think the estate saved at least $6,000 by the decision in the Peregoy case. Two lawyers, of character, ability and experience, in the practice of law and in respect of fees for legal services, certified that in their opinion $1,500 is a fair and reasonable allowance, “as a minumum”, and testified to that effect. They testified in the light of information from Mr. Patz that “the approximate number of hours” devoted to the services “ran somewhere around seventy to seventy-five hours” or between a minimum of sixty-nine and a maximum of seventy-seven hours.

Appellant testified that he first offered to pay Mr. Patz $750 and Mr. McAllister $150, which “was more than generous”, he withdrew that offer, and he now thinks the estate should be ordered to pay $500 to Mr. Patz and $100 to Mr. McAllister. “* * * I am a member of the bar in the District of Columbia, and was, in a way, able to judge the merits of the case, and I never had any doubts about our prevailing in the Court of Appeals. The case did not, in my mind, possess any novel or difficult twists, since it was predicated entirely upon the Bwranowski case. [Mach v. Baranowski, 152 Md. 53 , 136 A. 34 ]. * * * I concluded that the Court of Appeals, unless it went along with us, it would be necessary for them to reverse themselves in the Baranowski case. The question of novelty or difficulty in the case did not occur to me then; just the necessary steps in the legal controversy. The question of laches in the case made it simpler on my part. * * * In spite of the detailed testimony here this morning, the case still remains an ordinary day to day trial, in the life of any lawyer, a day in trial court, preparation of an appeal brief, and a day in the Court of Appeals, and I think the offer that I made to him was very generous, ⁵²⁴ but.

I-think the services to the estate were-not worth $1,500:” We are unable to. share appellant’s confidence in his own opinion, (foresight and hindsight), on legal questions and on the value of legal services — or even on our own ultimate infallibility. Perhaps the compelling force of the Baranowski case was not put to us by counsel as bluntly as it is by appellant, but, as most lawyers know, such arguments are not so irresistible as appellant seems to think. Appellant contends that $1,500 is excessive because (a) in the lower court appellees were not diligent in filing a brief requested by the court, (6) in this court the case was too simple to require substantial effort by counsel, (c) “When I first talked to Mr. McAllister, back in 1947, about this case, he remarked that the attorneys’ fees would come out of the executor’s commission, and that is the thought I carried all along in conducting the litigation in this case”, and (d) the case was not under-' taken for a contingent