PUBLISHED OPINION
Case No.: 94-2089
Complete
Title
of
Case:IN RE THE ESTATE
OF
LYLE W. CLATT, DECEASED:
BERTON D. SHERMAN,
Appellant-Cross Respondent,
v.
DON HAGNESS, HENRY CLATT, JR., ANN
SMITH,
EILENE RYAN, EMILY GIBSON, ESTELLA ERNST,
ELLEN HAYES, JAMES CLATT, ROBERT CLATT,
ESTATE OF CHAWNEY NEUMANN, AND
BETTY TOUCHETTE,
Respondents-Cross Appellants.
Submitted
on Briefs: April 6, 1995
Oral
Argument:
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 8, 1995
Opinion
Filed: June
8, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Jackson
(If
"Special" JUDGE: Robert
W. Wing
so
indicate)
JUDGES: Eich,
C.J., Sundby and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the appellant-cross respondent
the cause was submitted on the briefs of Robert A. Olsher of Sherman,
Olsher & Sherman of Black River Falls.
Respondent
ATTORNEYSFor the respondents-cross appellants
the cause was submitted on the brief of Robert L. Loberg of Swanson
& Loberg of Ellsworth.
COURT OF APPEALS DECISION DATED AND RELEASED June
8, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2089
STATE OF WISCONSIN IN
COURT OF APPEALS
IN RE
THE ESTATE OF
LYLE
W. CLATT, DECEASED:
BERTON
D. SHERMAN,
Appellant-Cross Respondent,
v.
DON
HAGNESS, HENRY CLATT, JR., ANN SMITH,
EILENE
RYAN, EMILY GIBSON, ESTELLA ERNST,
ELLEN
HAYES, JAMES CLATT, ROBERT CLATT,
ESTATE
OF CHAWNEY NEUMANN, AND
BETTY
TOUCHETTE,
Respondents-Cross Appellants.
APPEAL
from an order of the circuit court for Jackson County: ROBERT W. WING, Judge. Affirmed.
Before
Eich, C.J., Sundby and Vergeront, JJ.
SUNDBY, J.
This is an appeal by the personal representative/attorney of the estate
of Lyle W. Clatt from an order determining his fees. His appeal requires that we construe § 857.05(3), Stats., which permits the probate court
to allow the personal representative to receive executor's commissions or
attorney fees, or both. The personal
representative in this case, who was also an attorney, charged $100 an hour for
all services provided the estate. The
trial court allowed him the executor's commission computed under
§ 857.05(2) for his services as personal representative and $100 an hour
for his legal services. We conclude
that the trial court correctly determined the appellant's fees and affirm the
order.
Section
857.05(3), Stats., provides:
If the personal
representative or any law firm with which the personal representative is
associated also serves as attorney for the decedent's estate, the court may
allow him or her either executor's commissions, (including sums for any
extraordinary services as set forth in sub. (2)) or attorney fees. The court may allow both executor's
commissions and attorney fees, and shall allow both if the will of the decedent
authorizes the payments to be made.
(Emphasis added.)
Clatt's
will appointed his uncle personal representative of his estate. His will further provided that if his uncle
did not so act, "I appoint BERTON D. SHERMAN, Attorney, of Black
River Falls, Wisconsin, personal representative, also to serve without
bond." Clatt's uncle died and
Sherman acted as attorney for Clatt's estate as well as personal
representative. Clatt's will did not
authorize the court to allow both executor's commissions and attorney fees to
Sherman if he acted as attorney as well as executor of Clatt's estate.
Sherman
submitted a bill to the estate for his services from September 13, 1988,
to the 1993 closing, computed at $100 per hour. He did not attempt to separate services he performed as attorney
from the services he performed as personal representative. However, he voluntarily reduced his fees
$5,000.
The
residual beneficiaries of the estate petitioned the probate court for review of
Sherman's attorney fees under § 851.40, Stats.,
and his fees as personal representative pursuant to § 857.05, Stats.
Section 851.40(2) provides that any beneficiary under a will may
petition the court to review whether attorney fees charged the estate are
"just and reasonable."
The
trial court agreed with the residual beneficiaries that many of the services
Sherman performed were services customarily performed by the personal
representative. For those services, the
trial court allowed Sherman two percent on the inventory value of the property
for which he as personal representative was accountable, computed as provided
by § 857.05(2), Stats. The court also approved Sherman's attorney
fees computed by excluding the services he performed as personal
representative. The court allowed
Sherman a fee of $100 per hour for legal work performed. The probate court therefore exercised its
discretion under § 857.05(3), and allowed Sherman to recover both the
executor's commissions and attorney fees.
The
legislature recognized that a personal representative would have to retain an
attorney to perform the legal services necessary in the care, management and
settlement of an estate. The language
we have emphasized in § 857.05(3), Stats.,
simply recognizes that it may be more efficient and less expensive to have an
attorney act as personal representative as well as attorney for the personal
representative. However, the emphasized
language does not authorize the probate court to allow an attorney who serves
in both capacities compensation at his or her usual billing rate for all
services. We do not believe the
legislature intended that result.
Section
857.05, Stats., was created by
Laws of 1969, ch. 339. The comment to
that section reads: "This section
is based upon present s. 317.08. Sub.
(2) has been changed so that the percentage rate is increased somewhat and per
diem charge is eliminated. Sub. (3) is
new and codifies existing case law and increases court discretion." (Emphasis added.) The increase in the probate court's discretion modified the rule
stated in Estate of Ehlen, 18 Wis.2d 400, 404, 118 N.W.2d 877,
879-80 (1963), where the court said:
The general rule is that where a lawyer becomes executor
or administrator, his compensation as such is in full for his services,
although he exercises his professional skill therein; and although he performs
duties which he might properly have hired an attorney to perform, he is not
entitled to attorney fees.
(Citing Will of Fehlhaber, 272 Wis. 327,
330, 75 N.W.2d 444, 446 (1956)). In a
decision reported shortly after § 857.05(3) became effective, the
Wisconsin Supreme Court ruled that the probate judge "was free to
allow" executor's commissions and attorney fees. Estate of Philbrick, 68 Wis.2d 776, 783, 229 N.W.2d
573, 577 (1975). The dual fee does not,
however, empower the probate judge, in his or her discretion, to allow the
attorney who also serves as personal representative to bill the estate at his
or her customary hourly rate for all services.
We believe it is still the law that, "[i]n probate proceedings the
compensation for legal services rendered should be limited to those of a
strictly professional character." Will
of Willing, 190 Wis. 406, 416, 209 N.W. 602, 606 (1926). The attorney's services as personal
representative shall be compensated as provided in § 857.05(2).
We
therefore conclude that the probate court correctly construed § 857.05(3),
Stats., and properly exercised
its discretion when it limited Sherman's compensation for his services as
personal representative to the fee allowed under § 857.05(2).
By
the Court.--Order affirmed.