Decided July 11, 1962.
Executors and administrators — Fees of attorneys employed in administration of estate — Determination of reasonable value of services — Evidence of services performed and reasonable value thereof required.
APPEAL from the Court of Appeals for Franklin County.
Alta Morris Verbeck died testate on March 29, 1959. She was 88 years of age. Her estate was appraised at $281,710.62. She left no debts except current bills. The assets of the estate were highly liquid, except for the family home and personal effects. Co-executors of the estate were R. Crawford Morris, newphew of the testatrix, and Robert K. Verbeck, stepson of the testatrix.
The executors and the attorneys were unable to agree upon the amount of attorney fees for which application was to be made to the Probate Court.
The attorneys then submitted to the Probate Court an application for the allowance of fees.
Hearing was held before the Probate Court, and fees in the sum of $18,000 were awarded by the court. The court's reason given in its opinion is as follows:
"It is the opinion of the court that in this case, although it is not set up as a precedent to govern any other case, the services of counsel * * * [names of counsel] were worth twice as much as the services of the executors."
Appeal was taken by the executors to the Court of Appeals for Franklin County, and the Court of Appeals, in an opinion concurred in by two members of the court, affirmed the judgment of the Probate Court.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. Ray W. Poppleton and Mr. Lawrence A. Ramey, in propria persona. Messrs. Arter, Hadden, Wykoff Van Duzer and Mr. Crawford Morris, for appellee-executors, Robert Crawford Morris and Robert K. Verbeck.
At the hearing on this matter in the Probate Court, no evidence was offered by the attorneys in support of their application for the awarding of fees. The attorneys take the position that the court had the file before it, and that this was evidence of the services which they had performed, sufficient to justify the award of fees which was made.
There is no question that the attorneys were employed by the executors to represent them in the settlement of this estate, and that the attorneys performed such services.
Section 2113.36, Revised Code, provides that, where an attorney is employed in the administration of an estate, reasonable attorney fees shall be paid.
This means that reasonable attorney fees shall be based upon the actual services performed by the attorneys and upon the reasonable value of those services.
It is the opinion of this court that the Probate Court erred in not requiring from the attorneys some evidence of the services rendered and evidence of the reasonable value of such services, in addition to the file in the Probate Court.
This court can not say that the attorneys in this case were not conscientious in their duty in performing the services required by them as attorneys. This court can not say, from the record, what the value of their services should be. However, the burden is upon the attorneys to introduce into the record sufficient evidence of the services performed and of the reasonable value of such services, to justify reasonable attorney fees in the amount awarded. This the applicants have failed to do.
This court agrees with the dissenting opinion of Judge Rutherford of the Court of Appeals, when he said:
"* * * the Probate Court erred and abused its discretion by awarding attorney fees in the sum of $18,000 without evidence of services to substantiate said award of fees as being reasonable."
So far as the Probate Court attempted to substantiate the fees awarded by stating that attorneys were worth twice as much as executors, the court was in error. In fact, the probate judge, in his opinion, seems to have recognized the weakness of this position when he included the phrase, "although it is not set up as a precedent to govern any other case."
The judgment of the Court of Appeals is reversed and this cause is remanded to the Probate Court of Franklin County for further proceedings according to law.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, LONG and O'NEILL, JJ., concur.
LONG, J., of the First Appellate District, sitting by designation in the place and stead of HERBERT, J.