Baumer v. Howard

542 So. 2d 400, 14 Fla. L. Weekly 867, 1989 Fla. App. LEXIS 1885, 1989 WL 34576
CourtDistrict Court of Appeal of Florida
DecidedApril 7, 1989
DocketNo. 87-1566
StatusPublished
Cited by1 cases

This text of 542 So. 2d 400 (Baumer v. Howard) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baumer v. Howard, 542 So. 2d 400, 14 Fla. L. Weekly 867, 1989 Fla. App. LEXIS 1885, 1989 WL 34576 (Fla. Ct. App. 1989).

Opinion

NIMMONS, Judge.

The personal representative of the estate of William A. Howard appeals from a final order awarding attorneys’ fees from the estate to the attorneys for the decedent’s children for the representation of the children in proceedings on the personal representative’s petition to determine beneficiaries. The Howard children (appellees herein) cross appeal from this same order. We affirm.

In November 1985, William A. Howard was murdered. His wife, Peggy Mixon Howard, was indicted for his murder and thereafter acquitted by a jury. In June 1986, the decedent’s personal representative filed a petition to determine beneficiaries, in which he asserted that, notwithstanding her acquittal in the criminal prosecution, Peggy Howard had in fact stabbed her husband to death. The petition sought an order determining whether Peggy Howard had unlawfully and intentionally killed her husband, thus disqualifying her under 732.802, Florida Statutes (1985), from benefiting from his death.1

[401]*401The widow and the Howard children were named as respondents. The Howard children obtained counsel to represent them in the adversary proceedings on the petition. The Howard children took the position that Peggy had unlawfully and intentionally killed the decedent and that she was therefore disqualified under Section 732.802. The attorneys for the Howard children joined forces with the attorney for the personal representative in the effort to bar decedent’s widow from benefiting from the decedent’s death. The trial court found in its final order on the petition to determine beneficiaries that Section 732.802 should apply to preclude Mrs. Howard from taking any benefits as a result of her husband’s death.

Following the entry of the final order on the petition, the attorneys for the Howard children filed a motion to assess attorneys’ fees against the estate. In the evidence adduced at the hearing on the motion, it was demonstrated that, as a result of the outcome on the petition, the Howard children would receive income from the estate’s testamentary trust in the amount of $1,640,634.00, and would take benefit of jointly-held assets which would pass to the estate, and eventually to them, in the amount of $406,750.00, for a total value of estate-related benefits to them of $2,047,-384.00. Additionally, the Howard children would receive total insurance and other financial death benefits payable directly to them as a result of the widow’s disqualification in the sum of $3,593,396.00. These benefits passed outside the decedent’s estate.

Following the conclusion of the hearing, the court entered its order on motion for attorney’s fees. In that order, the court made the following findings:

The attorneys joined forces with the attorney for the personal representative in the effort to bar decedent’s widow from benefiting from decedent’s death on the ground that she had unlawfully and intentionally killed decedent. Counsel for the personal representative candidly admits that many of the services of the children’s attorneys were of substantial assistance in the preparation and presentation of the case against the widow, and that he would have had to perform those services had they not been rendered by the children’s attorneys.
The Court finds that, by their participation, the attorneys for the children, while benefiting their clients, also substantially benefited the Estate by ensuring that the estate was distributed according to decedent’s expressed intent. The attorneys also benefited the estate by preventing certain assets from passing to the widow, thereby increasing the assets and enhancing the value of the estate.

The court found that the attorneys’ services were therefore awardable pursuant to Section 733.106(3), Florida Statutes (1985).2 The court determined the reasonable fee for the services rendered by the Howard children’s attorneys which benefited the estate to be $144,880.00 and directed payment of that amount by the estate.

Two issues have been raised on this appeal:

I. Whether the attorneys for the Howard children rendered services to the estate which are awardable from the estate pursuant to Section 733.106(3), Florida Statutes; and
II. Whether the trial court should have apportioned the attorneys’ fees between estate and nonestate assets.

We find that the trial court did not err in finding that the attorneys for the Howard children rendered services which benefited the estate and were therefore entitled an award from the estate pursuant to Section 733.106(3). Under that section, an attorney who has rendered services to an estate may apply for the award of his fees. This statute has consistently been interpreted as requiring that the services [402]*402benefit the estate. In re Gleason’s Estate, 74 So.2d 360 (Fla.1954); In re Estate of Griffis, 366 So.2d 80 (Fla. 4th DCA 1978); In re Estate of Farris, 113 So.2d 721 (Fla. 3d DCA 1959). “Benefit” as used in this context is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will. In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983); Samuels v. Estate of Ahem, 436 So.2d 1096 (Fla. 4th DCA 1983); In re Estate of Barret, 137 So.2d 587 (Fla. 1st DCA 1962). See also Segal v. Levine, 489 So.2d 868 (Fla. 3rd DCA 1986) (“An attorney also benefits [‘renders services to’] an estate if, by his actions, the intent of the decedent is established and his estate properly divided”); and In re Estate of Griffis, 366 So.2d 80 (Fla. 4th DCA 1978) (for purposes of entitlement to award of attorney’s fee when attorney for successful contestant renders services to an estate, it is not the fact that the beneficiary who contested the probate was successful, but that by that contest the final will of the decedent was established and his estate properly divided and distributed).

The lower court correctly found that the attorneys for the Howard children rendered substantial benefits to the estate. First, it is evident that the attorneys increased the assets of the estate and enhanced its value. By establishing that the widow unlawfully and intentionally killed the decedent, the interest of the decedent in the entireties property became severed so that it passed to his estate instead of to the surviving spouse. Other assets which passed to the estate as a result of the attorneys’ efforts include the marital home and the benefits of the testamentary marital trust. Second, the children’s attorneys benefited the estate by ensuring that the estate property was divided and distributed according to the decedent’s intent. See Griffis, 366 So.2d at 81, and Segal, 489 So.2d 869. Certainly, it can be presumed that the decedent did not intend that his estate pass to his killer.

Appellant has relied on In re Estate of Blankenship, 136 So.2d 23 (Fla.

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Bluebook (online)
542 So. 2d 400, 14 Fla. L. Weekly 867, 1989 Fla. App. LEXIS 1885, 1989 WL 34576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baumer-v-howard-fladistctapp-1989.