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Matter of Estate of Dorothy Fleming Waring

Decided: June 27, 1966.

IN THE MATTER OF THE ESTATE OF DOROTHY FLEMING WARING, DECEASED. ALOYSIUS F. SCHAEFFNER AND PLAINFIELD TRUST STATE NATIONAL BANK, EXECUTORS, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
BARBARA C. SYKES, ET AL., DEFENDANTS-RESPONDENTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Jacobs, J. Hall, J., concurring in result.

Jacobs

The County Court entered a judgment in October 1965 (amended in January 1966) denying any allowance for the legal services rendered by a New York law firm in connection with the administration of the estate of Dorothy Fleming Waring. Appeals were taken to the Appellate Division and we certified before argument there.

Mrs. Waring, a resident of Plainfield, New Jersey, died testate in March 1963, leaving a substantial estate. Her will was admitted to probate by the Union County Surrogate and Aloysius F. Schaeffner and the Plainfield Trust State National Bank qualified as executors. Mr. Schaeffner is a member of the bar of New York and is a partner of Patterson, Eagle, Greenough & Day, a New York law firm which has long represented members of the Waring family including Mrs. Waring, her husband Orville G. Waring who died in 1950, and Orville's father Orville T. Waring who died in 1923.

Orville G. Waring had New York business interests and was president of Borne Scrymser Company which had offices in New York City. The Patterson, Eagle, Greenough & Day firm was general counsel for the company and Mr. Waring was in frequent consultation with it. Mr. Waring's will was drawn and witnessed by members of the firm and after Mr. Waring died, his widow Mrs. Dorothy Fleming Waring requested that the firm represent her in connection with the administration of her husband's estate. During the remaining years of her life, Mrs. Waring continued the retention of the firm for her legal and personal affairs including the

preparation of her tax returns and the drafting and execution of various wills culminating in her last will and testament.

After Mrs. Waring's death, the executors retained the New York law firm which in turn retained New Jersey counsel, Messrs. Pitney, Hardin & Kipp of Newark. In an affidavit filed by Mr. Bogert, a member of the New York firm, he acknowledged that ordinarily executors would be expected to retain only New Jersey counsel in connection with the settlement of the estate of a New Jersey resident, but he pointed out that here the New York law firm had represented the Waring family for approximately fifty years, that "no other counsel could have had as much familiarity or as much understanding of this decedent's personal affairs and estate" and that Mrs. Waring "actually intended Patterson, Eagle, Greenough & Day to be retained in the settlement of her testamentary estate." Cf. Friendly, J., In re Ira Haupt & Co., 361 F.2d 164, 169, n. 8 (2 Cir. 1966): "a testator would normally expect and desire that the firm that handled his affairs during his life should continue to do so after his death."

When Mr. Schaeffner first consulted Messrs. Pitney, Hardin & Kipp, he spoke with Mr. Osborne, a member of that firm. Mr. Osborne stated that his firm would handle all of the New Jersey aspects of the administration of the estate, and that it would expect to receive a fair fee for its work which he estimated would be between $5,000 and $10,000. The appendix and briefs before us indicate that the New Jersey counsel attended to the probate of the will and the qualification of the executors, prepared the New Jersey inheritance tax report, attended to the sale of the decedent's residence in New Jersey, passed on all questions of New Jersey law which arose, and prepared and conducted the proceeding on accounting through the entry of judgment. The New York firm conferred from time to time with New Jersey counsel, and engaged in extensive activities relating to the preparation and filing of the federal income tax return and the federal

estate tax return, and in miscellaneous other activities including the termination of the decedent's lease on a summer residence in Massachusetts and the handling of considerable administrative detail work. An affidavit by Mr. Nyland, a member of Patterson, Eagle, Greenough & Day, set forth that its services "were separate and distinct from those rendered by New Jersey counsel and were performed within the State of New York, except in several isolated instances when no more than mere presence in New Jersey was required."

In June 1965, the executors filed a complaint which sought the allowance of their final account and commissions and attorneys' fees. Attached to the complaint was an affidavit by Mr. Osborne and affidavits by members of Patterson, Eagle, Greenough & Day, setting forth in detail the services rendered by them in connection with the administration of the estate of Mrs. Waring. Mr. Osborne's affidavit requested the allowance of $75,000 to Messrs. Pitney, Hardin & Kipp for the services rendered by them and the New York firm, the allowance to be shared by the firms in the following manner: Pitney, Hardin & Kipp, $10,000 and Patterson, Eagle, Greenough & Day, $65,000. This form of application was in strict compliance with R.R. 4:107-3 which provides that, on every application for attorney's fees, the attorney shall file an affidavit stating in detail the nature of the services and specifying the amount requested; the rule provides further that the affidavit shall state whether the fee is to be shared with any attorney or firm of another state and, if so, the manner of sharing, and shall be supported by a verified statement of the foreign attorney or attorneys setting forth in detail the nature of the services rendered; and the rule provides finally that "[t]he allowance shall be payable to the New Jersey attorney, and shall state what part, if any, of said allowance is to be paid to or shared with the foreign attorney or attorneys."

The County Court allowed the executors' commissions and also allowed the sum of $10,000 to Messrs. Pitney, Hardin & Kipp. It denied any ...


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