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In re Account of Verna Mae Bloomer and Federal Trust Co.

Decided: September 20, 1955.

IN THE MATTER OF THE ACCOUNT OF VERNA MAE BLOOMER AND FEDERAL TRUST COMPANY, EXECUTORS OF THE ESTATE OF EDGAR NELSON BLOOMER, DECEASED


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[37 NJSuper Page 87] Verna M. Bloomer, beneficiary under the will of her late husband, Edgar N. Bloomer, appeals from that part of a judgment entered in the Monmouth

County Court, Probate Division, allowing a counsel fee of $18,000 for services rendered by David M. Satz as attorney for the executors of the estate.

Decedent died October 25, 1952; by his will he appointed his wife and Federal Trust Company of Newark, New Jersey, executors and trustees of his estate. They qualified on November 6 following. The executors filed their complaint on first and final accounting on February 26, 1955 demanding judgment allowing the account as stated, and executor's commissions to the Federal Trust Company (the widow waived any allowance) and counsel fees in such sums as the court might determine to be equitable and just. The account covered a two-year period from decedent's death to October 25, 1954. It reflected a corpus of $599,127 (appellant contends this should be only $469,127) and income of $9,820.98.

We have but a single issue before us -- the $18,000 counsel fee allowed. No exceptions were taken to the allowance of the account itself, nor is there any contest as to the award of executor's commissions.

The matter came on before the County Court on April 15, 1955 on notice of intention to settle the executors' account. R.R. 5:3-6; R.R. 4:106-1 et seq. The court had before it the complaint, the account itself, and the affidavit of David M. Satz generally outlining his services as attorney, supported by a detailed "time sheet." R.R. 4:107-3. Sol D. Kapelsohn, personal attorney for Mrs. Bloomer, who had also been counsel for various corporations in which the decedent had a substantial interest, served and filed his own affidavit on her behalf just before the commencement of the hearing, opposing the counsel fee in the amount requested. She contended the fee should not exceed $6,000. (It may be observed that the Satz affidavit and time sheet covers almost 32 pages of the printed appendix and the Kapelsohn affidavit 18.) The trial judge indicated that it would be impossible for him to digest the contents of the papers during the hearing, but nevertheless permitted oral argument to proceed. Mr. Kapelsohn summarized some of the highlights of his affidavit. Mr. Satz, in the course of his argument, referred to considerable factual

material which either was not contained in his affidavit or amplified the affidavit and its accompanying time sheet. The trust officer of the Federal Trust Company also made a statement, not under oath, which included factual material not before the court in the form of proof and tending to support the reasonableness of the counsel fee requested. At the conclusion of the hearing the court forthwith announced it would allow the fee in the full amount requested, $18,000.

Respondent Satz has included in his appendix considerable correspondence between and among himself, Kapelsohn, Federal Trust Co. and others, all purporting to refute the facts and contentions set out in the Kapelsohn affidavit. None of this correspondence was in evidence at the hearing in the County Court; it is not part of the record below and not properly reproduced in respondent's appendix. On the argument before us it was further revealed that there were many additional letters and records available and necessary to a complete understanding and proper determination of the issue before us. All this serves to show how incomplete was the information provided the County Court when it was asked to pass upon the question of counsel fees.

Upon analysis, four main points emerge from appellant's argument that the counsel fee allowed was excessive:

1. Many of the services allegedly rendered were not legal services but such as it was incumbent upon the executors to perform and for which they would be expected in law to be paid by way of commissions.

2. Some of the alleged legal services were performed without authority or as a volunteer.

3. Other services did not pertain to anything within the area of the executors' responsibility, but rather to that of the surviving officers and attorneys for the corporations in which the decedent held stock. (The bulk of the estate ...


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