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CHAPTER XXIII

EMPLOYMENT OF COUNSEL

§ 185. The Usual Course

A man who makes a will usually employs a iawyer to draw it up. In many cases he leaves the executed instrument in the keeping of the lawyer. Then, upon the death of the testator, the lawyer turns over the will to the executor named in the will for presentation for probate. Under such circumstances it would be natural that the executor employ the testator's lawyer, who was familiar with his affairs, his property, and business relations, rather than another. Also, if there were more than one executor, it would be simpler to employ the testator's lawyer than to choose between the counsels of the executors. Sometimes a testator names his own lawyer as executor or as one of the executors.

It is to be remembered, though, that an executor assumes responsibility for the estate. Important questions will come up for decision, and he will require for his own safety advice upon which he can rely. Hence, he is always entirely free to select his own counsel, and should do so, unless he feels as much confidence in the testator's selection as in his own. The old family lawyer might well look after the interests of the family, if it made them feel safer, but he should be employed by the family and paid by the family. An executor might prefer the advice of independent counsel as to his duty in the process of settlement.

The reasonable amount paid for such advice is always a proper charge against the estate, and the executor or the trustee may credit himself with the amounts so expended. These

amounts will then appear on the accounting, may be objected to by any party interested, and will be allowed or disallowed by the judge of probate. When the judge is himself a lawyer, he is not likely to disallow any fair fee.

§ 186. The Executor's Counsel

It is to be remembered that the executor has a free hand in engaging counsel. Even when the testator directed that that particular counsel should be engaged for the probate of his will and all other matters in which the executor required counsel, it was held by the court to be merely the expression of a wish, and the law does not recognize any power in a testator to control executors in their selection of attorneys. If there is any error made in the settling of an estate the executor is personally responsible, and therefore should be free to select his own advisers. Another consideration is that in employing counsel he is not acting as the agent of the estate, but acts independently for himself and is responsible for the fees of whatever counsel he employs. If, on accounting, such, fees are adjudged reasonable and such legal services necessary for the proper conduct of the settlement of the estate, the amount will be allowed and the executor will be reimbursed. Primarily, though, the executor is personally liable, and if such counsel's fees are unpaid the lawyer must bring suit against the executor or the administrator and not against the estate.

§ 187. Rules as to Employment of Counsel

In a recent case a New York surrogate laid down the following rules for the guidance of executors and administrators in employing counsel:

An executor should not in an ordinary formal account, involving no intricate question, employ eminent and expensive counsel and pay them extravagant fees. If the services beyond an ordinary trial or account were such that they

could very well have been rendered by an attorney of aver-
age learning and ability, he cannot pay him large fees and
be reimbursed therefor. On the other hand, if the estate
is large and the question at issue important, the accounting
party is not limited to the employment of counsel, whose
services may be obtained for a fee of ten dollars a day.'
He may engage counsel equipped by learning and experience
to conduct litigations of magnitude, and recompense him
with a fee corresponding to his services and the interests at
stake. In the case at bar, a considerable portion of the
services included in the voucher and testified to in greater
detail on the trial were rendered strictly in the administra-
tion of the trust, and there can be no doubt whatever that
they are allowable, unless the sums paid were excessive. Of
this class (allowable services) were the consultations as to
his conduct prior to the account, the transmission of funds
abroad, the McCabe mortgage and the tax matter. The
proof as to services rendered is not as detailed as I would
like in order to pass upon the propriety of the charge made,
and I am compelled to some extent, to rely upon my own
experience as to what labor must have been entailed by the
proper conduct of the litigation. I believe, however, that a
fee of fifteen hundred dollars in addition to the full amount
of disbursements claimed, is sufficient recompense for the
services shown to have been performed."

§ 188. Trust Companies and Counsel

When a bank or a trust company acts as executor or trustee, it will in some cases employ counsel suggested by the testator, reserving always its discretion to employ counsel of its own selection, in case it should seem desirable to do so. This would mean the employment of the counsel suggested for all the routine procedure, but for any special points coming up which might involve the trustee in liability to beneficiaries or to those who are to take the property when the trust expires, the

Ten dollars a day was the statutory fee allowed in New York for counsel employed to assist in preparing an account. It was an obsolete regulation even before the present high cost of living.

2 Matter of Smith, 2 Connolly (N. Y.) 418, 431.

trustee would naturally desire to be guided by the advice of its own attorneys, who naturally would be most interested in guarding the trustee from liability. There is always a possibility that some action taken by the trust company may not be approved by some beneficiary, and in such a case the company would want the independent advice of their own lawyer, rather than that of one whose sympathies might well be with some of the beneficiaries.

§ 189. In Event of Litigation

In event of litigation affecting the estate, it would be the duty of the executor to engage counsel who could adequately represent the interests of the estate. If the probate of the will was contested, the executor should be represented by lawyers able to meet the opposing counsel.

In a contest relating to the validity of a will, as this was,
the person by it appointed executor is bound, on every prin-
ciple of honor, justice and right, to defend it. He owes this,
at least, to the memory of the dead who placed this confidence
in him. This will had been duly proved without opposition,
and in the proper court, and the executor was bound to carry
out its commands or renounce. To do otherwise would be a

gross dereliction of duty. This being so, to make him per-
sonally liable for all the costs, in case the contestants succeed,
would be monstrous injustice.

If the estate had claims against others that it was necessary to enforce by suit, it would be the duty of the executor to employ counsel adequate for the purpose. An executor is to act in all respects as a prudent man of affairs would act in the transaction of his own business and the care of his own property. If the estate were large and the litigation important, he would want counsel of ability and repute. If the matter were merely a suit on a promissory note of small amount, he would give it to some young lawyer, or if the

Pingree et al v. Jones, 80 Ill. 177, 181.

executor were employing an eminent firm, they would turn it over to a junior or a clerk in their office and possibly make a proportionately smaller charge.

§ 190. The Lawyer's Fees

The executor has the right, and in the proper place it is his duty, to employ counsel, and he primarily pays their fees. If it was a proper case for the employment of counsel, the representative will be reimbursed. It is assumed that the fees so paid by the executor will be reasonable under all the circumstances. They are approved or rejected by the probate judge, and usually he is disposed to allow his brother of the bar "a living wage." At the same time, members of the bar have been known to charge more in such cases than they would otherwise, and on objection of any of the legatees, such charges may be rejected.

In a New York case the surrogate said:

I am convinced that the professional services that were rendered were characterized by skill and ability. The attorneys consumed much time in the performance of their duties, and their efforts were generally successful. If only a question of the character of the services were before me, I should say that they were probably worth the amount that was paid by the estate. But it seems to me that, when the question of compensation of an attorney is presented to this court, the ability of counsel and his success in litigation are not the only elements to be considered. The size of the estate must necessarily play an important part. The amount involved in a civil action is properly taken in consideration in determining the value of a lawyer's services (Rand v. Packard, 142 N. Y. 47, 56; People v. Bond St. Sav. Bank, 10 Abb. N. C. 15), and this test is peculiarly applicable in this court, whose duty it is to conserve estates and see that the persons interested therein obtain their just dues. The estate herein was a small one, amounting to about $8,000 and the fees paid to the attorneys of the executor amount to about one-half of

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