Morrison v. Kaufman

Doran, J.

This is an appeal from an order allowing respondents the sum of $5,400 for extraordinary legal services. It appears that Louis W. Morrison, the father of appellant, died testate on March 26, 1935, and that the appellant became the executor of his father’s will. Until December, 1939, the executor was represented by the law firm of Golden and Kaufman, and thereafter by Arthur Y. Kaufman who continued as sole attorney for the executor until in September, 1942, when Mr. Kaufman entered the Army, at which time Harry H. Dicker was associated as attorney for the estate. Assets in the estate were officially appraised at $478,459.84, and the final appraisal was $354,126.51, the assets consisting of property located in California and in New York.

On May 6, 1936, the following document was signed and delivered to the executor, and it is upon this written instrument that the appellant relies in objecting to the allowance of extraordinary legal fees:

“Received of Morrison Morrison the sum of Six Thousand Dollars ($6,000.00), One Thousand Dollars ($1,000.00) of

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which has heretofore been received, and Five Thousand Dollars ($5,000.00), receipt of which is acknowledged herewith.

“Said sum of Six Thousand Dollars ($6,000.00) is received by us as full settlement of any and all claims, which we may have against Morrison Morrison either individually, or as executor of the Estate of Louis W. Morrison, deceased.

“For said sum so received, we agree to complete the probate of the Estate of Louis W. Morrison, deceased, without any further charge whatsoever. It is understood, however, that in the event that we shall be engaged in a contest with reference to inheritance taxes, then and in that event, we shall be paid a reasonable percentage of the amount which we save from the taxes now computed against said Estate, said percentage which we are to receive to be mutually agreed upon.

Dated: May 6th, 1936.

Golden and Kaufman,

By A. V. Kaufman,

By Milton M. Golden.”

Subsequently, on or about March 19, 1943, respondents filed their petition for allowance of fees for extraordinary services to which appellant filed an answer setting up the agreement of May 6, 1936, and denying the performance of any extraordinary service or any subsequent oral agreement on his part to pay any additional attorney fees. Thereafter this petition was withdrawn and a second petition for extraordinary fees was filed, identical with the first except that it set forth the agreement of May 6, and alleged an indebtedness of $2,000 due from appellant personally. It was stipulated that the answer to the first petition would be deemed an answer to the second petition. Respondents’ petition sets forth, in extenso, the performance of considerable amount of legal work including contested tax claims, litigation, and sales of real estate, specifying 34 court appearances, a time expenditure of 232 days, and alleging a saving to the estate of $65,000. On November 19, 1943, after a four-day hearing at which appellant and respondents testified at length, the trial court allowed the sum of $5,400 for extraordinary legal services, apportioning the amount as follows: