Richardson v. Tyson

86 N.W. 250, 110 Wis. 572, 1901 Wisc. LEXIS 248

• Court: Wisconsin Supreme Court
• Decided: May 21, 1901
• Status: Published

Opinion

Dodge, J.

Many of the underlying principles upon which rest the rights of the claimant here, as also the limitations of those rights, are already decided, not only as the law of the state, but as the irrevocably adjudicated law of this case, in Tyson v. Tyson, 94 Wis. 225, and Tyson v. Richardson, 103 Wis. 397. As most fundamental among these must be borne in mind that the infant is always the ward of every court wherein his rights or property are brought in jeopardy, and is entitled to most jealous care that no injustice be done him. The guardian ad litem is appointed merely to aid and enable the court to perform that duty of protection. Cole v. Superior Court, 63 Cal. 86, 89. By Circuit Court Rule IX, he must be an officer of that court, and that official character both supports him in the performance of his duties and limits his rights and conduct. His duties are of the highest character, especially when, as now, he is an attorney at law, owing not only fidelity and wisdom, but also the duty of investigation of the legal rights of his ward and advocacy thereof. The performance of his important functions has already won for this claimant commendation from this court, and it is at the express wish of all of its members that the writer of this opinion reasserts approval of the loyalty to the wards’ interests, the fearlessness and courage against severe opposition and at the sacrifice of personal comfort, and the distinguished industry and professional learning and ability which have characterized Mr. Richardson's performance of those official duties resulting from his appointment as guardian ad litem down to the time of presentation of his formal demand for compensation in the sum of $5,000.

Not less in measuring the proper allowance to a guardian ad litem out of the estate he conserves than in strengthening his arm to conserve it must the fact be considered that he is a public officer,— a trusted attorney, aiding his own court as an official duty cast upon him by its appointment, a duty which no lawyer can with propriety decline, even though it may be compensated inadequately or not at all. A duty of public service without such compensation as would be demanded for similar labors for individuals rests upon all members of the community,-and is cheerfully performed in positions of all grades from jurymen and town supervisors upward. Especially has been recognized from earliest times the duty of lawyers to aid their courts in the protection of the helpless or the oppressed without thought of pecuniary benefit. We have indulged in thus much of generalization as to the true attitude of a guardian ad litem, which applies as well in some measure to other officers of courts, such as trustees, receivers, and the like, to lead up to the true rule which should guide courts in fixing the compensation and expenses which should be allowed them. As it would be the duty of an attorney, however eminent, to defend one accused of crime for the very moderate compensation now fixed by statute, or for none ¿t all if none were allowed; as it is the duty, and, we are pleased to observe, the custom, of attorneys to serve the court in "disbarment proceedings without compensation, so it is a professional duty to aid the court as guardian ad litem, either without compensation if the case requires it, or, when funds exist, for compensation to be measured by the standard of official emoluments, rather than by that of the highest prices demanded and paid between individuals free to contract as they will. The judge whom the claimant was called to aid was devoting his learning añd ability to the public service for pecuniary reward wholly incommensurate to what the same industry, learning, and ability would have commanded at the hands of clients. It is with such illustrations, rather than with private contracts, that comparisons should be made in measuring the allowance to claimant. In another case (Speiser v. Merchants’ Exch. Bank, ante, p. 506), we have taken occasion to point out the alarming tendency among officers of courts, and even of the courts themselves, towards reckless demand and allowance of unreasonable and excessive compensation out of funds within their grasp. While those remarks are far less applicable to the situation in this case, we cannot but feel that reference to them is wise, to the end. that courts may have continually in mind the peril of lapsing into the abuses mentioned.

The first contention made by appellant against the allowances to the claimant is that he is bound by contract to the sum of $500,— $250 for his services in circuit court, and a like sum in this court. The facts upon which this contention is predicated are substantially uncontroverted. They are set forth in substance in the accompanying statement of facts. Mr. Richardson does not dispute the accuracy of Mr. Spence’s narrative of the conversation between them, nor the giving of the receipt in full upon the completion of the hearing in circuit court. We can see no escape from the conclusion that, by accepting the appointment in pursuance of that conversation, Mr. Richardson limited himself to the compensation of $250 for his services in the circuit court, which were performed in exact compliance with the arrangement so made. They were in no respect enhanced by any unexpected conduct on the part of others, and they were performed, and payment therefor accepted, without suggestion or intimation that he expected to receive for those services any other or further compensation. Nor did the language used by Mr. Spence fairly justify any such mental reservation or expectation as Mr. Richardson claims that he had, to the effect that, if a fund was found to exist and belong to his wards, he should be paid, in addition, a sum to be fixed by the court. In considering the reasonableness of this arrangement, it must not be forgotten that Mr. Richardson was then young in practice, with reputation for ability not widely established, and apparently without large and engrossing practice from which his attention and labors would necessarily be diverted to considerable pecuniary loss. The case was an important one, likely to attract attention, and presenting questions in the immediate line of Mr. Richardson’s special studies, so that distinguished service therein would be likely to be highly advantageous to him in establishing before the bar and the public his qualifications as a real-estate lawyer. There seems to us no inherent improbability, in that situation, that he would have assented to Mr. Spence’s proposal, and deemed it at least reasonably beneficial to himself. We conclude, therefore, that for the services rendered in circuit court he must be held to have been paid in full, and to be not entitled to any further allowance.

At this point in the history of the case, however, the situation changed so entirely and radically from that within the contemplation of both Mr. Richardson and Mr. Spence that the arrangement as to rate of compensation for further services can have no application. Instead of the action being brought to the supreme court by Mr. Spence without trouble or burden of liability to Mr. Richardson, the plaintiff, upon the advice of new counsel, determined to rest upon the judgment of the circuit court, which had denied to Mr. Richardson's wards any interest whatever in the real estate involved. For a period approximating two years, Mr. Richardson was, of course, thrown into a situation of doubt and uncertainty as to his duty, and still more as to how it could be performed. Convinced as he was of the existence of valuable rights in his minors, and that injustice had been done them by the decision of the trial court, yet he was confronted in that conclusion with the decision of Judge JohNsoN, an equity lawyer o'f high repute, and with the expressed opinion of counsel of large experience and brilliant reputation, all of which might well give pause to a lawyer of his youth and limited experience. Again, he was without means to justify him in assuming the possible expenses attending an appeal, and, as he testifies, without relations with those who could furnish the necessary bond. At this stage, too, he was met with what we cannot construe otherwise than as threats of assault upon the sincerity of his motives and upon his professional integrity should he persist in further litigating the question upon which judgment had been rendered, and was refused not only all aid in securing a decision from the ultimate tribunal, but any concessions or stipulations to remove obstacles in his path. When at last his convictions as to his ward’s rights and his duty to further vindicate them triumphed over his reluctance to incur all of these obstacles, he was met by most strenuous efforts of him who had accepted, by appointment as guardian, the duty of promoting the legal rights of these minors to the utmost, to remove respondent from his position as guardian ad litem, and to dismiss his appeal from this court. Such things were not within the ■contemplation of any one when Mr. Richardson consented to present the rights of the minors in this court for a compensation of $250, and reversed the situation so entirely that we cannot hold him bound thereby, and therefore proceed to consider the proper measure of his compensation.

Appellant’s counsel here presents two questions of law: Eirst, he denies the right of a guardian ad litem under any circumstances to employ counsel at the expense of the estate, without previous order of court; and, secondly, power to impose any of the expenses of settling his account, especially the attorneys’ fees in that proceeding. On neither of such contentions does the brief give us material aid. To the first are cited Matter of Johnston, 6 Dem. Sur. 355, and Smith v. Smith, 69 Ill. 308. The first of these merely declares the general practice of the surrogates in New York not to allow attorney fees to special guardians appointed on applications for administration. The latter decides in favor of the right of guardian ad litem to reimbursement of attorneys’ fees if reasonable and reasonably necessary, although not expressly authorized. To this decision the court added, by way of caution:

“In such cases the better practice would seem to be,, where the guardian ad litem is appointed and he believes, that his ward has rights, for him to apply to the court for leave to employ counsel; and the court should, in granting leave, fix the amount that might, if required, be expended for the purpose of the defense, which, if it, from the protracted litigation or otherwise, should prove insufficient, the court, on being satisfied of the fact, might increase the sum.”

' With this cautionary suggestion we entirely concur. The policy in this state, as indicated by Circuit Court Rule IX, is that attorneys be appointed to such position on the assumption that the guardian himself will be able to render the professional services necessary to any ordinary situation. Hence the employment of additional counsel can only be justified by unusual or extraordinary circumstances. If the guardian takes such step without an order of court, he assumes the peril that it may be disproved, and he be left to bear the expense personally. Nevertheless, if, after the fact, it appears that such precaution was reasonably necessary for the welfare of the minors, and such as the court would have authorized in advance had application been made, no reason is apparent why the reasonable expense should not be allowed. Much the same considerations are involved as were suggested with reference to taking appeal in Tyson v. Tyson, 94 Wis. 225; Hamacker v. Commercial Bank, 95 Wis. 359, 362; Thompson v. Phenix Ins. Co. 136 U. S. 287, 294; Cole v. Superior Court, 63 Cal. 86; Henry v. Henry, 103 Ala. 582.

We cannot doubt that a situation presented itself in this case which made it very seemly and prudent that the guardian ad Utem should invoke the aid of a lawyer of eminence, ability, and experience atthe time Mr. Elanders was consulted. As we have pointed out already, Mr. Bichardson\s own judgment was in antagonism to the views of Judge Johnson, of Mr. Spence, and of Gren. Bragg. He was a young man, who had not extended experience by which to test the accuracy of his own reasoning and judgment, and might well hesitate, however clear his conclusions, to incur further labor and expense without confirmation from a lawyer -able to supply those deficiencies. One subject to be discussed upon his appeal, as he had already been assured by Gen. Bragg, would be his own sincerity -in moving it, thus rendering personal argument embarrassing and probably of lessened efficacy to his wards. In view of these considerations, and of Mr. Flanders’s ability to procure the needed sureties for an appeal, we concur with the circuit court in approving reasonable expense for securing his services. As to the amount which should be allowed the guardian as a disbursement for Mr. Flanders’s services, however, the action of the referee and the circuit-court seems to us unwarranted by the record as now presented. Of course, we cannot, as between the counsel and his employer, even express an opinion of the reasonableness of the charge made, for Mr. Flanders is not a party and has had no opportunity to be heard, not even having been called as a witness. The services may, as intimated, have considerably exceeded what are described; but, such fact not being made to appear, we cannot consider it. "We can only pass upon the amount of credit to Mr. Richardson for such services as he has proved to have been rendered, in the light of such knowledge as we may have of those in this court. No evidence of reasonable value was introduced on the trial below, and, since such as were proved to have been rendered came more fully under the observation of this than of the circuit court, no reason exists that we should not pass judgment upon them untrammeled by the finding of the referee and circuit court. The only services disclosed by the record outside of this court consisted in the examination and approval of Mr. Richardson’s brief as to his right to appeal, and of his brief upon the merits of the construction of the deed under which the land was held. The claimant’s testimony is that these briefs were submitted, and were returned by Mr. Flanders with his unqualified approval the same day; that the brief upon which the motions were beard in this court was written by Mr. Richardson, and adopted by Mr. Flanders. The only further service was the argument in this court, performed in a single day. It must be borne in mind that, while courts may approve after the fact that which it were better to have submitted for their approval in advance, they ought not to allow themselves to be affected by contracts which the guardian may have made to allow more than they would have allowed upon such preliminary application. Had the explanation been made in advance of the character of the services desired to be obtained from Mr. Flanders, such as they now appear by the record, we cannot believe that a contract to pay $500 would have been deemed necessary, or would have been approved. We are constrained to the view that one half of this amount, $250, is liberal allowance for expense necessarily incurred by the guardian for the service which he claims to have received, and that his charges against his wards should be limited to that sum.

The second rule of law contended for, namely, that a guardian ad litem can have no allowance either for services or, more especially, for attorney’s fees paid in the hearing on his account, is not supported by the citation of any authorities, but the contrary seems well sustained when the officer acts fairly, makes full disclosure, and does not make unreasonable demands for credit or allowance. 2 Daniell, Ch. Pr. *1411; Kingsbury v. Powers, 131 Ill. 182, 198; Clark v. Anderson, 13 Bush, 111, 116; Bendall's Distributees v. Bendall's Adm'r, 24 Ala. 295, 305. This obviously must be so if the guardian is to receive fair compensation for services. It would be contradictory to fix such fair and reasonable compensation if the sum so fixed must be reduced to something less by imposing on him the necessary expense of passing his accounts,— a step which his duty requires. The question whether employment of an attorney on such hearing should be compensated out of the estate as an expense is a delicate one. Only under extraordinary conditions can it be proper. Usually, the guardian should be content to submit a plain statement of his services and disbursements to the court under which he has performed them, leaving to that court to fix the amount in the light of its own opportunity for observation and of any evidence it may desire. Ordinarily, vehement contention is not to be expected, and necessity for a hired advocate can hardly exist. Notwithstanding all these considerations, however, it still remains in each case a question for the court whether the extraordinary circumstances do exist to make necessary or proper such employment, and whether the services rendered by the attorney are merely those which the guardian might himself have rendered, or are such as, owing to the situation, he could not properly perform. There is no absolute limit on the power^ of the court to allow such disbursement; merely considerations restrictive of the exercise of its judgment and discretion. Thompson v. Phenix Ins. Co. 136 U. S. 287.

Considering, in the light of these views, the employment of Mr. Monroe, we find that the petitioner first presented his claim for allowance and compensation entirely in accord with the above suggestions, specifying no amount, but submitting the whole question to the court, upon a full and explanatory report, in July, 189 Y, and then devoted ten days to the investigation of the question of law whether that allowance could be made by the circuit court, and whether it could be so imposed as a lien upon the remainder in the real estate as to enforce its payment,— a field of inquiry which the court must investigate, and in which aid from the guardian was due and necessary. This petition was denied, as already stated, and an appeal taken to this court. At substantially this stage Mr. Monroe’s retainer came about. As to that Mr. liioJicorclson testifies :

“ I employed Mr. Monroe, with whom at that time I was in partnership, to take exclusive charge of this proceeding, for the reason that I was about to go away for an indefinite period, and be absent from the state, and also for the reason that, it being a matter in which I personally was interested, I thought it advisable to have it in charge of another attorney.”

He elsewhere testified that an additional consideration was the character of the opposition to this account, which had developed out of the appointment of Mr. Mallory as general guardian, and the employment by him in that capacity of an attorney who had declared vehement antagonism to any allowance in favor of the guardian ad litem. Mr. Monroe wrote the brief, argued the appeal in this court, and, after the remittitur, conducted the trial before the referee and argument before the circuit court upon this petition for allowance, and presents a bill of' $500 for his services up to the commencement of the hearing before the referee, and of $150 in that hearing, to which $50 was added by the court for the argument upon the referee’s report. In the light of this evidence, we are unable to find justification for specific charge, as for a disbursement on behalf of the estate, for Mr. Monroe’s services, other than upon the hearing before the referee. The earlier procedure involved nothing of fact, did not draw into consideration either the conduct or the motives of the guardian ad litem, and the reason given by Mr. Richardson for the employment of Mr. Monroe, then associated with him in partnership, was one going wholly to his own convenience. It was substantially requesting Mr. Monroe to perform Mr. Richardson’s own duties as guardian ad litem during the latter’s absence. That being so, and no criticism being suggested that Mr. Monroe’s rendition of the services was not as effective and useful as would have been Mr. Richardson’s own, the character and amount of those services cán be taken into consideration only as bearing upon the amount of proper allowance to the guardian, and the charge as for a distinctive disbursement must be disallowed.

The hearing before the referee, however, presents an unusual anti difficult situation. At that hearing the entire ■conduct of Mr. Richardson was on trial; the facts as to the ■detail and volume of the services rendered by him, their quality, and the embarrassments and opposition under which they were performed, all were to be investigated, and in large measure must call for extended examination and cross-examination of himself as a witness. All this would have rendered his conduct of the hearing as his own advocate highly embarrassing, if not unseemly, and to this extent we approve the action of the referee and of the court below in treating Mr. Monroe’s employment and payment as a proper disbursement; nor do we see any reason to disapprove the ■amount of $200, fixed therefor, which is upon the basis of $25 per day.

The remaining question is whether the amount fixed by the court as compensation for the guardian’s own services is reasonable from the point of view already suggested as the true one. That allowance, largety exceeding the amount fixed by the referee, so closely corresponds with the opinions of several leading members of the bar testifying as experts that we cannot avoid the conviction that the court deemed himself substantially controlled thereby, as he would be by a consensus of witnesses on other subjects. Such, however, is not the true rule as to compensation of court officers, and especially of attorneys for services of a professional character. On that subject the opinions of others in the same profession are advisory only, and, although unanimous, are not controlling. Judges are as well able to form correct opinions as are other, lawyers. Taylor v. C., M. & St. P. R. Co. 83 Wis. 645, 648; Remington v. Eastern R. Co. 109 Wis. 154; Trustees v. Greenough, 105 U. S. 527; Harrison v. Perea, 168 U. S. 311, 325. Again, the record before us makes apparent that the lawyers who estimated respondent’s services at $5,000 gave considerable weight to the hypothesis that the value of the property conserved to the remaindermen approximated $150,000. This was not the fact. A mere remainder in property or in a fund is not of the same value as the fund itself. As the whole cannot be greater than the sum of its several parts, the value of the remainder can only be the balance remaining after deducting the prior estate, which, at the age of the life tenant, Mrs. Ruggles, approximates two thirds of the property, leaving value of the remainder only about $50,000. We by no means decide that this variance should.make any very considerable difference in the fair value of the services rendered. Smith v. Smith, 69 Ill. 313. We mention it because the expert witnesses evidently gave much weight to the stated value of the estate, some of them justifying their opinions by the suggestion that three per cent, is a moderate collection fee. Eor both these reasons their estimates not only did not constrain the court to an allowance of $5,000, but they hardly supported it.

In view of the foregoing considerations, and of the further fact that most of Mr. Richardson's services not already compensated in full were performed before this court, and none of them, except the accounting, before the circuit judge who made the order appealed from, we have considered the whole subject as an original one, and reach the following conclusions: first, that the respondent is already paid in full for his services on the merits in circuit court, which, by the way, involved more than one third of all time spent by him; second, that the disbursements for expenses of travel, $17.50, should be allowed; third, that not more than $250 to Mr. Elanders and $200 to Mr. Monroe can be approved as specific expenses chargeable to the estate for services other than such as should have been performed by the guardian ad litem; and, fourth, that a fair and reasonable allowance to the guardian ad litem for all services as such, other than those in the circuit court, already compensated by payment of $250, is the sum of $2,500, and interest on all such credits from July 19, 1897.

By the Oourt.— The order appealed from is reversed, and the cause remanded with directions to enter order allowing the guardian ad litem for all services and expenses the sum of $2,967.50, with interest from July 19, 1897, with provisions for lien and enforcement as in the reversed order.