Simon v. Bittner

288 N.W.2d 549, 1980 Iowa Sup. LEXIS 789
CourtSupreme Court of Iowa
DecidedFebruary 20, 1980
DocketNo. 63474
StatusPublished
Cited by4 cases

This text of 288 N.W.2d 549 (Simon v. Bittner) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simon v. Bittner, 288 N.W.2d 549, 1980 Iowa Sup. LEXIS 789 (iowa 1980).

Opinion

UHLENHOPP, Justice.

This appeal involves the propriety of the amount of a fee allowed an individual who served as an attorney for the executors and as co-executor of the decedent’s estate. See §§ 633.197, 633.198, The Code 1979. The first of those sections provides:

[550]*550Personal representatives shall be allowed such reasonable fees as may be determined by the court for services rendered, but not in excess of the following commissions upon the gross assets of the estate listed in the probate inventory for Iowa inheritance tax purposes, which shall be received as full compensation for all ordinary services:
For the first one thousand dollars, six percent;
For the overplus between one and five thousand dollars, four percent;
For all sums over five thousand dollars, two percent.

The other section provides:

There shall also be allowed and taxed as part of the costs of administration of estates as an attorney’s fee for the personal representative’s attorney, such reasonable fee as may be determined by the court, for services rendered, but not in excess of the schedule of fees herein provided for personal representatives.

The Code also provides in section 633.199:

Such further allowances as are just and reasonable may be made by the court to personal representatives and their attorneys for actual necessary and extraordinary expenses or services. Necessary and extraordinary services shall be construed to also include services in connection with real estate, tax matters, and litigated matters.

These sections are founded on quantum meruit; personal representatives and their attorneys are entitled to the reasonable value of their ordinary services not exceeding the specified percentages, and to the reasonable value of their extraordinary services, if any. In re Estate of Engelkes, 256 Iowa 213, 218-19, 127 N.W.2d 111, 114 (1964); Glynn v. Cascade State Bank, 227 Iowa 932, 937-38, 289 N.W. 722, 724-25 (1940).

Cecelia C. Simon died leaving an estate having a value in excess of $340,000, and a will appointing Attorney R. Richard Bittner as executor. In her will she gave $300 to a church and her jewelry and certain .bank shares to her stepdaughter, Margaret Crane. The jewelry and shares were worth altogether about $51,500. Testatrix gave the residue of her property to her stepson, Hubert K. Simon, who is an attorney in Yonkers, New York, and to Margaret Crane.

Mr. Simon and Mrs. Crane visited Mr. Bittner after testatrix’ demise. Mr. Bittner told them that administration of the estate would entail handling considerable money, which he did not care and was not equipped to do. He also told the beneficiaries that as sole executor he would have to post a surety bond notwithstanding that testatrix waived bond in the will. See Iowa Sup. Ct.R. 121.5(a). He contracted two bonding companies at the time and found that the annual premium on a bond would be a substantial amount. To avoid this expense, and for handling the estate funds, he recommended that the First Trust & Savings Bank be appointed co-executor. He informed Mr. Simon and Mrs. Crane that the fee of the bank would be two percent of the value of the assets, as would his fee also. He made this professional statement to the probate court at a later hearing on his fee:

Q. Do you recall specifically mentioning at your retention in your office that your services would .be approximately two percent of the estate? A. I advised them that the statutory fee for attorneys was two percent and the statutory fee for the bank was two percent and that is what they would be expected to pay.

After the beneficiaries’ conference with Mr. Bittner, the probate proceeding went forward. The probate court appointed Mr. Bittner and the bank as co-executors, the assets were gathered, inventoried, and liquidated so far as necessary, the state and federal inheritance tax returns were made and accepted, and the taxes were paid. The bank made and furnished the beneficiaries a computer printout of monetary transactions.

In the course of the proceedings Mr. Bitt-ner was able to save the estate approximately $6500 in taxes by obtaining a reduction in the valuation of stock in a closely-[551]*551held corporation. Bond premiums were saved by having the bank serve as co-executor. Mr. Bittner also carried out considerable negotiations for the sale of certain real property in the estate, and completed that transaction. He sought no extraordinary compensation for the real estate work, or for tax work in which he participated.

In their final report Mr. Bittner and the bank each asked for “statutory” fees. As we understand the case, Mr. Bittner’s fee would compensate him in full for both his legal and fiduciary services and for both ordinary and extraordinary work, if the real estate and tax work are considered to be extraordinary. Attached to the final report was Mr. Bittner’s itemized statement of services, running over eight pages.

Mr. Simon and Mrs. Crane did not dispute the bank’s fee, but they objected to the fee Mr. Bittner asked. The probate court held a hearing and allowed a fee to Mr. Bittner which appears to equal two percent of the value of the estate assets plus $120, or $6936.89. The beneficiaries appealed.

We understand the probate court’s decision to hold that the court allowed the amount of the fee to Mr. Bittner on two bases: the beneficiaries agreed to the fee at the outset, and the services were reasonably worth the amount the court allowed. In their brief the beneficiaries contend that the court erred (a) in finding that they agreed to pay two percent, (b) in holding that the percentages in the statute constitute a “mandatory fee,” and (c) in concluding that Mr. Bittner’s services were reasonably worth the amount allowed.

We review appeals of this nature de novo, § 633.33, The Code, but we give weight to the trial court’s fact findings, especially on credibility, although we are not bound by them. Basic Chemicals, Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977).

I. . With a proviso we will consider later, we find no necessity to determine whether the beneficiaries agreed to pay two percent. Regarding fee agreements between attorneys and beneficiaries where the rights of estate creditors and individuals under legal disability are not involved, see In re Matter of the Estate of Rorem, 245 Iowa 1125, 1142-43, 66 N.W.2d 292, 302 (1954), and In re Estate of Hale, 231 Iowa 1018, 1023-25, 2 N.W.2d 775, 778-80 (1942). If the reasonable value of Mr. Bittner’s services had been less than two percent, then the question would be important as to whether a contract for two percent existed. We will approach the question of the reasonable value of the services in due course.

II. We do not find merit in the beneficiaries’ second contention that the probate court found the “statutory fee” to be mandatory. To the contrary, the court stated in its decision:

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288 N.W.2d 549 (Supreme Court of Iowa, 1980)

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Bluebook (online)
288 N.W.2d 549, 1980 Iowa Sup. LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-bittner-iowa-1980.