Estate of Rosen

520 A.2d 700, 1987 Me. LEXIS 606

• Court: Supreme Judicial Court of Maine
• Decided: January 27, 1987
• Status: Published

Opinions

ROBERTS, Justice.

Three of fourteen beneficiaries under the will of William H. Rosen appeal from the decision of the Penobscot County Probate Court approving the fee of The Merrill Trust Company as personal representative pursuant to 18-A M.R.S.A. § 3-721 (1981) and assessing attorney fees against the beneficiaries who challenge the reasonableness of the bank’s fee. We vacate the attorney fee assessment and affirm the approval of the fee of the personal representative.

The primary challenge raised on appeal is directed at the Probate Court’s assessment of attorney fees incurred at the hearing to determine the reasonableness of the bank’s fee. The appellants do not dispute the amount of the attorney fees. They claim, however, that the fees should be awarded out of the estate to be borne pro rata by all the beneficiaries. We agree. Section 3-720 of the Probate Code provides for an award of reasonable attorney fees “from the estate.” M.R.Prob.P. 54(d)(1) provides that costs may be allowed “out of the estate.” An award of costs against a losing party is permissible only upon an express finding that the claim or objection is frivolous or malicious. Estate of Rand, 505 A.2d 100, 101 (Me.1986). No such finding was made in the present case, nor would the record support such a finding. Any award of attorney fees, therefore, must be out of the estate.¹

The appellant’s challenge to the fee of the personal representative, both in the Probate Court and on appeal, is directed at the lack of itemization and the absence of any time records maintained by either the trust officer or the staff of the trust department. The bank presented the testimony of the trust officer who described in considerable detail the problems encountered in administration of the Rosen estate. He also estimated the total time expended both by himself and by the staff. In addition, the bank presented an expert witness who testified that the fee was reasonable and consistent with what would be charged by other corporate fiduciaries in the community.

We will not disturb the Probate Court’s determination of the reasonableness of the personal representative’s fee except for clear error. Estate of Tessier, 468 A.2d 590, 597 (Me.1983). In the case at bar the court’s opinion reflects a detailed review of the evidence presented and a careful consideration of the section 3-721 criteria. Unlike the circumstances described in Estate of Davis, 509 A.2d 1175 (Me.1986), the Probate Court in this case was not compelled to find an impermissible reliance upon a percentage fee. The appellants have demonstrated no clear error in the action of the Probate Court.

The entry is:

Order assessing the attorney fees vacated.

In all other respects, judgment affirmed.

No costs on appeal to any party.

NICHOLS, GLASSMAN, and CLIFFORD, JJ., concurring.

1 . As in Rand, we have no need to decide whether rule 54 permits the inclusion of attorney fees as part of an award of costs. 505 A.2d at 101 n. 1.