Blum v. Levy

Opinion

NEWSOM, J. James Bloom (decedent) died on May 19, 1977. His children, Leonard Bloom and Evelyn Birnbaum, filed for probate, on May 23, 1977, a duplicate original of a joint, mutual and reciprocal will decedent and his (later predeceased) wife executed in 1962.

On May 26, 1977, Bank of America (Bank) and Raymond Levy, Esq. (appellant) petitioned for probate of a will dated October 20, 1975, and codicil dated February 5, 1976.

The children and the Bank each applied for special letters of administration, and the Bank filed an opposition to the childrens’ petition for special letters on June 7, 1977, and July 5, 1977.

[198]On June 23, 1977, the children filed a contest to probate of the 1975 will and codicil on grounds of alleged undue influence by appellant and decedent’s secretary-housekeeper.

The probate court denied both petitions for special letters, appointed a special administrator with general powers (administrator) and consolidated the two probate proceedings on July 19, 1977.

Thereafter, with the consent of both administrator and probate court, the children settled in their entirety the several claims arising from the 1975 will, and, without further contest, were found by the probate court to be entitled to the entire estate of decedent as beneficiaries of the 1962 will. At the same time, the probate court found the 1975 will violative of certain contractual provisions of the 1962 will, and ordered that a constructive trust be imposed upon decedent’s net estate for the benefit of the children, and directed the administrator, after payment of all debts and obligations, to deliver the net estate to them.

Appellant thereupon filed his objection to the administrator’s petition to settle final account, claiming, or “praying,” entitlement to one-third of the statutory fees rendered for what he rather boldly asserts were services rendered “for the estate.”

He now appeals from the court’s order of March 28, 1979, approving the final account and directing distribution without provision for his claimed fees.

It is worth noting at the outset of our discussion, that decedent was 95 years old when he first consulted appellant concerning preparation of a new will, which, inter alia, would have had the effect of disinheriting decedent’s children, ft is also notable that the 1975 will which resulted from such consultation purported to require the Bank, as a condition precedent to its “qualifying” as executor, to engage appellant as attorney in all matters pertaining to the estate.