In Re Estate of Kerr

949 P.2d 810
CourtWashington Supreme Court
DecidedJanuary 22, 1998
Docket64881-6
StatusPublished
Cited by55 cases

This text of 949 P.2d 810 (In Re Estate of Kerr) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Kerr, 949 P.2d 810 (Wash. 1998).

Opinion

949 P.2d 810 (1998)
134 Wash.2d 328

In re ESTATE OF Mary Margaret KERR, Deceased.
Stacy R. BENNETT, Personal Representative, Petitioner,
v.
Susan RUEGG, Respondent.

No. 64881-6.

Supreme Court of Washington, En Banc.

Argued September 23, 1997.
Decided January 22, 1998.

*811 Stokes, Eitelbach & Lawrence, Scott Johnson, Laura Buckland, Seattle, for petitioner.

Paul Cantor, Ryan, Swanson & Cleveland, Robert Bryan, John Mele, Seattle, for respondent.

SMITH, Justice.

Petitioner Stacy R. Bennett, personal representative in a decedent estate, seeks review of a Court of Appeals per curiam decision which reversed a judgment of the King County Superior Court awarding attorneys' fees to the estate of Mary Margaret Kerr on behalf of Petitioner, personal representative of the estate, who successfully resisted her removal in a probate proceeding. We granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether, under the general fee provision of the Probate Code, RCW 11.96.140,[1] courts may award discretionary attorneys' fees in removal proceedings or whether that provision is inapplicable because the specific section of RCW 11.68.070[2] relating to removal of a personal representative is the exclusive authority for award of attorneys' fees.

STATEMENT OF FACTS

On January 3, 1995, Mary Margaret Kerr died leaving a will.[3] It contained specific bequests to each of her five grandchildren, including Petitioner Stacy R. Bennett, and designated her daughter, Respondent Susan Ruegg, as residuary beneficiary.[4] Ms. Kerr named Petitioner, Stacy R. Bennett, her granddaughter who is also Respondent's *812 daughter, as personal representative[5] of her estate valued at about $24,000.[6] Upon admission of Ms. Kerr's will to probate in the King County Superior Court, the court issued letters testamentary appointing Petitioner Stacy R. Bennett as personal representative, as directed by the will, on January 6, 1995.[7]

Respondent Susan Ruegg and Petitioner Bennett are mother and daughter. They have been estranged since Petitioner's childhood. Intense animosity between them led to mutual accusations of dishonesty and misconduct in this proceeding brought by the mother to remove the daughter as personal representative of the estate of Respondent's mother who was Petitioner's maternal grandmother.[8] On March 30, 1995, Respondent filed a motion which included removal of Petitioner as personal representative, appointment of an independent personal representative, and a full accounting of estate assets.[9] On May 5, 1995, King County Superior Court Commissioner Maurice M. Epstein granted the motion removing Petitioner as personal representative.[10] Petitioner brought a motion for revision on June 8, 1995.[11] Judge Joan E. DuBuque reversed the commissioner's ruling and reinstated Petitioner as personal representative.[12]

Petitioner Stacy R. Bennett then brought a motion for attorneys' fees under the general fee provision in RCW Chapter 11.96, which governs jurisdiction and procedure in probate actions. Referring to the general fee provision of RCW 11.96.140, Petitioner sought an award of attorneys' fees and costs incurred by the estate in successfully opposing Respondent's motion for removal.[13] On July 18, 1995, King County Superior Court Judge Jim Bates awarded attorneys' fees of $4,076.20, one-half the amount sought, in favor of the estate of Mary Margaret Kerr against Respondent Susan Ruegg. The order provided:

THIS MATTER came before the Court on the Estate's Petition for Award of Attorneys' Fees and Costs. The Court has considered the petition, the declaration of Scott A.W. Johnson and the exhibits thereto, the response of Susan Ruegg, the Declaration of Craig E. Schuman, the Declaration of Paul A. Cantor and exhibits thereto, and the other pleadings filed in this matter.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Estate's request for an award of its attorneys' fees and costs shall be and hereby is GRANTED in part.
IT IS FURTHER HEREBY ORDERED that the Estate shall be awarded in its favor against Susan Ruegg one half of its reasonable attorneys' fees and costs incurred in responding to Susan Ruegg's petition and in filing the request for attorneys' fees and cost in the amount of $4076.20. Susan Ruegg shall be liable to the estate in that amount.[[14]]

On July 28, 1995, a King County court commissioner entered judgment as follows:

SUMMARY JUDGMENT

Pursuant to RCW 4.64.030, the following information should be entered in the Clerk's Execution Docket:
1. Judgment Creditor: The Estate of Mary Margaret Kerr
2. Judgment Creditor's Attorneys: Lora L. Brown and Scott A.W. Johnson and the firm of Stokes, Eitelbach & Lawrence, P.S.

3. Judgment Debtor: Margaret Susan Kerr Bennett Hartmann Ruegg (formerly known as Susan or Sue Bennett or Susan *813 or Sue Hartmann, and currently known as Susan or Sue Ruegg) ("Susan Ruegg").

4. Amount of Judgment: $4076.20
5. Amount of Interest Owed to Date of Judgment: $0
6. Total of Taxable Costs and Attorneys' Fees: $0

ENTRY OF JUDGMENT

THIS MATTER came before the Court on presentation by Stacy R. Bennett, Personal Representative of the Estate of Mary Margaret Kerr, of a judgment for money due by Susan Ruegg. The judgment was presented pursuant to RCW 4.60.070 and based on the Court's order awarding attorneys' fees and costs which is attached hereto as Exhibit A. Based on the foregoing:
THE COURT HEREBY ENTERS JUDGMENT in favor of the Estate of Mary Margaret Kerr against Susan Ruegg in the amount of $4,076.20.[[15]]

On August 15, 1995, Respondent Susan Ruegg appealed the award of attorneys' fees,[16] arguing that the award under RCW 11.96.140 is contrary to the fee provision in RCW 11.68.070. Referring to RCW Chapter 11.68, which provides for settlement of small estates without administration, she argued that the specific fee provision of RCW 11.68.070 applied and not the general fee provision of RCW 11.96.140.[17]

In an unpublished per curiam

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Cite This Page — Counsel Stack

Bluebook (online)
949 P.2d 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-kerr-wash-1998.