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this sum. In view of all the attendant circumstances, I am of the opinion that, in spite of the arduous services rendered, the sums charged were excessive. If attorneys, who receive large fees for their time and labor, care to engage in the litigation of a small estate, they must be satisfied with correspondingly small remuneration. The amounts paid to the attorneys of the accountant, which are objected to, will only be allowed to the extent of one-half.*

A number of factors enter into the making of a charge for legal services:

I. The amount involved. A lawyer would expect to be paid more for collecting a note for $50,000 than for a note of $500, although the time, labor, and skill involved were the same in each case.

2. The intricacy and difficulty of the case and the degree of skill required. Beginning suit on a promissory note is a simple matter and a law clerk or a lawyer just admitted could do it as well as a Root or a Choate. To break a will is usually an exceedingly difficult matter and requires skill and experience, forcefulness, and intellectual ability, in no small measure.

3. The actual time and labor involved. Many lawyers base their bills on the time spent in consultation, research, and attendance at court, charging perhaps a higher rate for time engaged in trial or public hearing than for office time.

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4. The repute and position of the lawyer. In every community there are certain lawyers who have won their spurs and whose advocacy is more valuable on that account. executor would not be justified in retaining such a lawyer for a simple, straightforward probate of a small estate. On the other hand, he would be remiss if he did not engage such a man if the estate were large and the issue uncertain

5. Finally, the fee charged will be affected by the fact of A lawyer who has recovered a hand

success or non-success.

Matter of Jones, 28 Misc. (N. Y.) 599.

some amount by suit or has successfully fought off a claim for heavy damages, can and will charge more than he would if he had deserved as much and had done as much, but had lost his case.

§ 191. The Lawyer as Executor

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In many cases lawyers are made executors. In New York, if a lawyer acts as executor, he may be paid a reasonable attorney's fee in addition to his commissions as executor. Where a man has a lawyer who is his friend as well as his business counsellor, and who knows all about his property and his problems, such a man could more satisfactorily serve as executor than could anyone else. In such a case, the testator should find out what the legal commissions for settling the estate would amount to, and if these are not enough should leave his executor a liberal legacy by way of compensation for what he is asking him to do. In a well-arranged estate, with a carefully considered will, comparatively little money need ever pass through the executor's hands, and the legal fees would be inadequate compensation for the work and responsibility. In such case, a legacy of greater value to compensate the executor would be a wise and generous measure.

In selecting an executor from among friends, it is to be remembered that if they are men of the same generation as the testator they may die first, or may die during the administration of the estate. In this respect, executorship by a trust company has its great advantage.

192. The Work of the Family Lawyer

Apart from the function of the advocate, the lawyer's work may be heaviest in connection with the disposition and care of property. Families that have property have to have family lawyers, and this work, while not exciting, is interesting and brings the counsellor into close touch with human lives, human motives, and human experiences. The work of

settling estates and the care or guardianship of minors and looking after the interests of single women, demands from the counsellor much care and much sympathy and patience for human frailties and foolishness. This sort of work will bring the lawyer into close touch with many lives. Many strange stories will come to his ears, which he can never repeat but which make him feel that he can do good in the world, and that with his brethren, of the clerical and medical professions, he can help to make lighter the loads of weary human beings. As he grows older and after he has been in the community longer, he will be appointed executor of estates, guardian of minors, trustee of funds, and to other responsible work that comes to those in whom the community can trust. Much of this is not very remunerative work or very thrilling, but it has its charm for one who loves his fellow man and who cares for the lives of those about him."

REVIEW QUESTIONS

I. What is the argument for employing the testator's lawyer? What is the objection? Who decides?

2. Why is the executor free to employ whom he will? Who pays the lawyer's fees?

3. When may the executor employ high-priced counsel?

. Why would a trust company always reserve the right to employ its own counsel?

5. What would be the duty of the executor in event of litigation? 6. Who decides whether or not the executor shall be reimbursed for what he pays lawyers? Generally, what factors enter into a lawyer's fees?

7. Why does a lawyer make a desirable executor? How may a testator increase the compensation of his executor?

8. How does the work of the family lawyer differ from the work of the trial lawyer?

Conyngton, Business Law.

CHAPTER XXIV

COMPENSATION OF THOSE WHO SETTLE
ESTATES

§ 193. Introduction

The customs and statutes of each state and jurisdiction differ on compensation, and the best information can be acquired only by examining the codes and records of the particular state in which you are interested.

In taking up the subject here, the statutes of some of the more prominent states have been examined as giving as nearly as may be a general idea of this subject.

Attorneys' fees have been discussed in § 190, but it is well to note here also that the law usually sets no limit on attorneys' fees, and that the attorney and his client are expected to come to a satisfactory agreement between themselves. When fees are to be paid by the estate, the court must approve the amount later.

Back in the earlier days, when statutes on this question had not yet been passed and the common law was still in force, the office of executor and administrator was honorary and had no remuneration attached to it. In the United States and Canada, this is not now the case, and for the most part the states have passed regulations concerning this question of compensation, and where a definite amount or percentage is not fixed by statute, the representative is entitled to a reasonable amount for his services.1 This reasonable amount is, for the most part, based on the amounts fixed by statute in other states.

1 Main's Appeal, 73 Conn. 638.

§ 194. Compensation of Personal Representatives

The amount of compensation allowed a personal representative does not depend upon the law in force at the time of the settlement of the account or at the time of appointment, but depends upon the law of the state in force at the time that he rendered the services for which he is claiming compensation. Where a representative delivers into the hands of the court which issued him letters, funds which have been collected from debts owed the decedent's estate in another jurisdiction, his compensation or commission will be regulated in this instance by the law of his own jurisdiction.

Even though the appointment of a representative was irregular in some way, he is entitled to compensation for services rendered faithfully and well until the court discovers its error. A representative may withhold from creditors a sufficient sum to cover the commissions he has earned in paying other claims and collecting debts. Although he may not actually take this amount, he may hold it as a separate fund until it is awarded to him by the court as lawful commissions.

Executors' and administrators' fees are preferred claims and must be paid along with those of funeral expenses and the allowance for the family pending settlement. (See § 110.)

Where a statutory compensation has not been prescribed for all services which may be rendered by a representative, or where the common law is still in force, representatives are entitled to a reasonable compensation for all services which were necessary to settle the estate, and for the benefit of the estate; but they may not receive compensation for services which were not properly a part of their work, or for services not connected with the settling of the estate, or for their own benefit.

§ 195. Compensation Fixed by Testator

A testator has the right to and may fix the amount of compensation to be received by his executor. If, under such cir

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