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Matter of Estate of Nathan Simon

Decided: February 6, 1967.

IN THE MATTER OF THE ESTATE OF NATHAN SIMON, DECEASED


Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

This appeal involves a challenge to the adequacy of an award of counsel fees to the attorneys for an estate on an intermediate accounting.

Nathan Simon died February 12, 1963 leaving an estate valued at about $435,000. After making certain specific bequests, including religious, educational and charitable bequests, he bequeathed the residue to charitable institutions in Israel as might be designated by the executors. Aaron Heller and Nathan R. Simon, nephew of the decedent, were named as executors under the will.

The executors filed their first intermediate account on July 17, 1964, covering the period from the decedent's death to April 30, 1964. The County Court order approving the account awarded the executors $15,000, representing commissions on corpus, and a counsel fee of $25,000 to the attorneys.

On March 22, 1966 the executors, through their attorneys, filed their second intermediate account, covering the period from May 1, 1964 to December 31, 1965. Aaron Heller, one of the executors, is a member of this firm. The attorneys appeal from that portion of the order on the accounting relating to the allowance of counsel fee to them. The court allowed $5,000 of the requested allowance of $25,000 and allowed the executors $5,000 commissions on corpus and $2,230 commissions on income. Appellants charge that the amount allowed for legal services is grossly disproportionate to the value of the services rendered and constitutes an abuse of discretion. They assert that the trial court failed to give proper consideration to the recognized factors applicable to the determination of allowances for legal services in such cases. In support of their application, appellants particularly stressed the value and importance of their services rendered in a federal estate tax deficiency proceeding and their expert skill and special knowledge in such tax matters, which they claim resulted in a saving to the estate of about $85,000, including interest.

In its findings the trial court expressed the opinion that the affidavits covering the services of counsel did not warrant the counsel fee requested; that in the court's opinion the accounting was a simple one, and that, aside from the federal estate tax and the selection of charitable beneficiaries under the terms of the will, the administration of the estate presented no unusual problems.

The court stated that in awarding the fees it considered N.J.S. 3A:10-8. That section provides:

"On the settlement of the account of a fiduciary in the superior or county court, if the fiduciary is a duly licensed attorney of this state and, as such, shall have performed professional services in addition to his fiduciary duties, the court in which he accounts shall, in addition to the commissions provided by this chapter, allow him a just counsel fee. * * *"

The court alluded to the fact that Mr. Heller or his firm would be receiving a total of $30,000 for legal services on the two accountings, as well as an additional sum of $8,615 representing his one-half share of the principal and income commissions allowed to the executors. (The total commissions allowed appear to be $22,230, with Mr. Heller's share $11,115 instead of $8,615.) The court found that some of the services referred to in the affidavits, particularly those relating to the selection of the charitable beneficiaries, were performed by Mr. Heller and his co-executor in their capacity as executors. He said he gave consideration to the factors to be considered in determining the allowance for legal services as set forth in In re Bloomer's Estate, 37 N.J. Super. 85, 94 (App. Div. 1955).

Our review of the record leads us to the conclusion that appellant has not sustained the burden of showing manifest abuse of discretion on the part of the lower court in making the allowance appealed from. See In re Bloomer's Estate, 43 N.J. Super. 414, 419 (App. Div. 1957), certification denied, 23 N.J. 667 (1957).

An examination of the proceedings before the trial court, including the affidavits in support of the ...


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