#### Guardianship of Abel.

*November 16*

December *5, 1911.*

*Guardianship: Allowance of attorney’s fees: Appealable order.*

1. Where the parties consented that in and by the final order in a. guardianship proceeding the circuit court should determine the amount of attorney’s fees, if any, to be allowed for services to an incompetent person, but did not agree that such determination should be final or waive the right to appeal, an appeal lies from that part of the order.

2. No allowance should have been made, under the facts of this. case, for services of attorneys on behalf of an incompetent person.

Appeal from an order of the circuit court for Milwaukee' county: Lawrence W. Halsey, Circuit Judge.

*Reversed.*

Albert E. Abel was an adopted son "of John H. Ahel. The-latter died in 1901 leaving surviving his widow, *Catharine B.,*this adopted son, and an adopted daughter, now *Mrs. Adele Stewart.*He left a will devising the use, profit, and income of all his property to his widow during widowhood,, and subject to this some legacies not relevant here, and 499 shares of' stock in a corporation to his adopted son, and the residue, subject to the legacies and to the devise to his wife, to this, adopted son and to the adopted daughter. The widow, entitled to the use of the income, and the two adopted children,. *468being of full age, consented to a sale of this corporate stock, and the proceeds of such sale remained in the hands of the executors in lieu of the shares of stock. The appraised value of the estate was slightly over $215,000, and the interest of Albert F. Abel therein worth $100,000, but he would come into possession and enjoyment only after the termination by death or marriage of the widow’s right to the income. Up to 1905, when he was about twenty-six years of age, Albert E. Abel continued to live in the home of his foster-mother. He was shiftless and dissipated and addicted to the use of intoxicating liquors. During the next three years his habits became worse. On June 30, 1908, at the instance of his foster-mother and under the advice of the attorneys for the estate, he executed and delivered to her an assignment, absolute on its face, of all his interest in his foster-father’s estate, and contemporaneously with this assignment a separate instrument signed by Albert and his foster-mother showing that the assignment was given only as collateral security for any and all loans and advances which she might thereafter make to him. He was required to report at the office of these attorneys at least once a week, and this he did up to July 18, 1910, receiving weekly sums from his foster-mother to aid him in providing for himself. Up to this time she had advanced him $607.25, about $65 thereof for clothing and the remainder in weekly sums of $5. He worked intermittently and earned a little money, and his dissipation and drunkenness increased to such an extent that he became mentally incompetent. On or •about July 18, 1910, *Arthur H. Koenitzer,*an attorney who had known Albert for about ten years prior to that time, brought him into the office of *William L.*Tibbs, also an attorney at law. *Tibbs*applied to Walter A. Zinn, who was a friend or client of Tibbs, for a loan to Albert, and drew up •and had executed by Albert and Mrs. E. A. Schroeter, a married sister of Zinn, an instrument dated July 22, 1910, reciting that Albert claimed certain interests in the estate of *469John EL Ahel, deceased, after the payment of certain legacies, and on the termination of the life estate of the widow of said deceased, and desired to make a loan sufficient to secure him $10 per week during the continuance of the estate of said widow, and such further amount as might he necessary to. secure and protect his rights in said estate, and agreeing that Mrs. Schroeter should advance $1,000 and leave the same with the Fidelity Trust Company of Milwaukee as trustee, to be paid out to Albert at the rate of $10 per week, with such further sums as the parties to the instrument might agree to be necessary to protect his interest in the estate, and also agreed to keep on deposit with the Fidelity Trust Company money sufficient to advance the $10 per week. Albert agreed, as the money was advanced, to execute and deliver to Mrs. Schroeter his promissory notes therefor bearing interest at the rate of ten per cent, per annum, compound interest, secured by an assignment of all his right in the estate. Mrs. Schroeter was a mere cover for Walter A. Zinn, who was the real party with Albert to this instrument. The writing did not bind Zinn. On the same day *Tibbs*drew up and he and *Koenitzer*witnessed an assignment by Albert of all his interest in this estate as security for the repayment of the money loaned and to be loaned and as security for the carrying out of the terms and provisions of said contract on the part of Albert. On the same day Albert, *Tibbs,*and *Koenitzer*executed an instrument in writing reciting the interest of Albert under the will in question and that he claimed the assignment to his foster-mother of his interest had been wrongfully and illegally procured from him and that he had a right of action against her to vacate and set aside this assignment and recover and secure his interest in the estate, and for the purpose of so doing desired to procure the legal services and assistance of *Koenitzer*and *Tibbs.*He therein covenanted to pay to the persons last named for such services one half of the amount of all money, assets, and property which might be *470received or recovered from Lis foster-mother individually or as executrix of said will, and one half of the amount of all money, assets, and property to which he was then or at any time thereafter might become entitled as heir, legatee, or dev-isee under the will of John II. Abel, deceased. *Kdeniizer*and *Tibbs*on their part agreed to commence and take such legal proceedings as might be necessary in order to set aside the assignment and to recover and secure the interest of Albert in and to the estate of John II. Abel, deceased. It was also covenanted that they should make no charge except that therein agreed on, and that no settlement should he made with Albert’s foster-mother without the consent of each of said parties to this instrument. It further purported to give these attorneys a lien on the cause of action and on the proceeds thereof and upon Albert’s interest in and to the estate of John H. Abel, deceased, to recover the amount which was therein agreed to be paid. On the 23d day of July, 1910, *Tibbs*further drew up and Albert signed a power of attorney appointing *Tibbs*and *Koeniizer*jointly his lawful attorneys for him and in his name, place, and stead to commence, maintain, and prosecute all necessary actions to vacate and set aside a pretended assignment to the widow dated June 30, 1908, of Albert’s interest in the estate of John H. Abel, deceased, and to maintain and prosecute all other actions which might be necessary. This authorized the attorneys to adjust, compromise, and settle all controversies pertaining to the interest of Albert, to sign, seal, acknowledge, and deliver in his name all contracts of settlement, deeds, releases, assignments, conveyances, or other instruments that might be necessary in the adjustment and settlement of his interest in the said property. It further granted jointly unto these attorneys the right, power, and authority to negotiate for a sale or sales and to sell and dispose of all or any part of the right, title, and interest of Albert in said estate at and for such sums or amounts of money or property as the attorneys should deem *471•adequate and sufficient and to execute contracts of sale, deeds, etc., to carry this into effect. It further purported to secure compensation for services, legal or otherwise, agreed to he rendered, and sold or assigned and conveyed to said attorneys an interest in and to all of the interest óf Albert in said estate and declared that the power of attorney was irrevocable. *Tibbs*also drew up and Albert signed another assignment to E. A. Schroeter of his interest in and to any and all contracts and agreements which he might have with the widow and the money and property to be received thereon and therefrom. This was dated July 22, 1910. On- July 23, 1910, *Tibbs*further drew up and Albert signed another assignment selling, assigning, and setting over unto *Tibbs*and *Koenitzer*a one-'half interest in and to all his right, title, and interest in this •estate. These papers were sealed in an envelope and deposited with the Fidelity Trust Company with the following in-dorsement on the envelope:

“This envelope was this day deposited and left with the undersigned Trust Company by Albert F. Abel, he stating that the same contained a duplicate contract between himself and *William L. Tibbs*and *Arthur H. Koenitzer;*also power of attorney to same parties; also assignment, as security for the agreement of said contract; also contract between himself and E. A. Schroeter; likewise two assignments to E. A. Schroeter :as security for the terms of said contract with said Schroeter.”

There was also another indorsement as follows:

“Eeceived of Albert F. Abel this 23d day of July, 1910, one envelope having indorsed thereon the following: “This envelope was this day deposited and left with the undersigned Trust Company by Albert F. Abel, he stating that the same contained a duplicate contract between himself and *William L. Tibbs*and *Arthur H. Koenitzer;*also power of attorney to same parties; also assignment, as security for the agreement •of said contract; also contract between himself and E. A. Schroeter; likewise two assignments to E. A. Schroeter as security for the terms of said contract with said Schroetpr,’ which said envelope is to be held for the said Albert F. Abel, *472but tbe same, or the contents thereof, is not to be withdrawn or removed from the undersigned Trust Company, or shown to any third parties, unless by and with the consent and in the presence of each and all of the parties to said agreement, or their duly authorized attorneys or agents.” Signed by the-Fidelity Trust Company.

10n September 16, 1910, *Mr. Tibbs*drafted and Albert executed his last will and testament, whereby he revoked former wills and gave, devised, and bequeathed to Walter A. Zinn all of his property and appointed Zinn sole executor without, bond. In this will he recited that he contemplated guardianship proceedings being had over his person and property. In this will he also expressed a wish and desire that Zinn assign or turn over to *Koeniizer*and *Tibbs*all the money and property to which by virtue of the aforesaid contracts they would be entitled. Further directed that said contracts be carried out and performed by Zinn for and in his behalf.

Zinn advanced $1,200 to the Fidelity Trust Company as trustee. Albert went to the Keeley drink cure at Waukesha accompanied by *Mr. Koeniizer*on the day following the execution of the contracts and before making his will. Here he remained a month, when he was discharged for a violation of the rules. Upon his return Albert and *Koeniizer*lived five- or six weeks in a camp a few miles north of the city. This brought them down to about the first week in September. About this time *Tibbs*employed *Mr. Bossiier*Lines, an attorney, as counsel or assistant in the prospective litigation against *Mrs. Abel.*On September 16, 1910, a summons and affidavit for examination of *Mrs. Abel*were drafted and served. On September 17th *Lines*filed a petition for the appointment of a guardian of Albert, reciting that the latter was twenty-nine years old and had no vocation, trade, or means of earning a livelihood, and that Albert then was and for more than five years had been addicted to the excessive-use of tobacco and intoxicating liquors; his habits were ir*473regular and dissipated, and tbat as tbe result tbereof bis judgment and- mental capacity bad become so impaired tbat be then was and during tbe whole period of five years bad been unable and incompetent to care for bis person and estate; that Albert was sensible of such mental incapacity and incompetence and inability and desired a guardian appointed. It then describes bis interest in tbe estate of Jobn II. Abel, deceased, and avers tbat tbe widow of tbe latter, knowing tbe incompetency of Albert to make a valid contract, procured from him by undue influence, fraud, etc., a pretended assignment of Albert’s right, title, and interest in tbe said estate, .and tbat said pretended assignment was on file in tbe county court of Milwaukee county and could be used in a fraudulent and wrongful manner for tbe purpose of closing up tbe estate without notice to or tbe knowledge of Albert, who apprehended such fraudulent use would be made. This petition askéd tbat tbe Fidelity Trust Company, a corporation, be appointed guardian of tbe person and estate of Albert. On the same day tbe Fidelity Trust Company consented to act, and an order was made by tbe circuit court appointing this trust company such guardian, and letters of guardianship were issued to it. Notice of examination served with tbe summons on September 16th was returnable on September 23d and a subpeena issued for *Mrs. Abel,*together with a notice to produce papers. Tbe papers in this proceeding stated, among other things, tba-t discovery was desired concem-.ing tbe nature and contents of another paper or document made or executed in connection with said assignment to *Mrs. Abel.*No notice or demand of any kind was given to or made upon *Mrs. Abel*before tbe commencement of this suit.

On September I7th-tbe attorneys for the Abel estate informed *Mr. Tibbs*of tbe fact tbat tbe assignment of Albert to bis mother was not an absolute one nor claimed as such ■ and tbat there was a defeasance, and requested *Mr. Tibbs*to *474examine that instrument. On the same day the attorneys for the estate transmitted by writing to *Mr. Tibbs*copies of the assignment to *Mrs. Abel*and of the contemporaneous collateral agreement, with other information. September 22d another subpoena was issued for *Mrs. Abel*with a like notice to produce, but was served on Mr. Gehrz, one of the attorneys for the estate. On September 23d the examination under sec. 4096, Stats. (Laws of 1909, ch. 84), for the purpose of enabling the plaintiff to plead began, Albert appearing by *Tibbs*and *Koenilzer,*and *Mr. Tibbs*conducting the examination. This examination was continued until September 26th, again until September 27th, when it was resumed and concluded. The collateral agreement was here again produced, and *Mrs. Abel*stated that she was willing to cancel the assignment to her upon repayment to her of $607.25, the amount she had advanced under that assignment and collateral agreement. Nothing further was done in this suit against *Mrs. Abel,*no complaint served or filed, but the suit was continued from time to time by stipulation.

On October 6th the mother and sister by adoption of Albert petitioned the county court for the appointment of a guardian of the person and estate of Albert, and said matter was set for hearing in the county court on the first Tuesday of November. At about the same time they petitioned the circuit court to vacate the appointment of the Fidelity Trust Company as guardian, and this was by order to show cause returnable October 8,1910. Affidavits were presented in these proceedings. On October 25, 1910, a writ of *certiorari*was issued by the circuit court to the county court to bring up the matter in the latter court for the appointment of a guardian for Albert. On February 2, 1911, Albert having become reconciled to his foster-mother and sister, and *Koenilzer, Tibbs,*and *Lines*having expressed their willingness to surrender up all the contracts mentioned, the circuit court, having all these matters before it, and the Fidelity Trust Com*475pany praying to be relieved of its guardianship aforesaid, by consent of parties took up all these matters in the Matter of the Guardianship of Albert E. Abel and discharged the Fidelity Trust Company as guardian and appointed *John J. Maher*in its stead. It also by the same order vacated the appointment by the county court, allowed the guardian’s account, and ascertained and fixed the amount of other liabilities. *Koenitzer, Tibbs,*and *Lines,*the Fidelity Trust Company, Zinn, and Schroeter in this proceeding surrendered up the will of Albert and all contracts with Albert to the circuit court, and all parties agreed that the court should .cancel up those contracts, the will, power of attorney, etc., and ascertain and fix the attorney fees, if any, of the several attorneys engaged in this matter. The parties were unable to agree on the amount of attorney fees which should be awarded to *Koenitzer, Tibbs,*and *Lines,*and evidence was offered on both sides bearing on this question. The circuit court made an order disposing of all such matters, and one portion of this order fixed the attorney fees last mentioned at $5,000, and from that part of this order an appeal is taken by Albert by his general guardian, *John J. Maher.*

The respondents offered themselves as witnesses and claimed compensation for six days’ services in court and two hundred and fifty days in preparation and drafting papers. *Koenitzer*“figured” that he devoted eighty-five days to looking after Albert at the Keeley cure and in the camp and looking up law, without discriminating between services as an attorney at law and those of an attendant or companion. *Lines*spent sixty-four days in office work and six days in court. *Tibbs*devoted one hundred and one days to the matter, six or seven days of which were in court. It is apparent that no such amount of time was necessary and there is no proof that it was necessary in the case.

For the appellant there were briefs by *Austin, Fehr & Gehrz,*and oral argument by *Q. G. Gehrz.*

*476For the respondents there was a brief by *William L. Tibbs, Bossiter Lines,*and *A. H. Koenitzer, in pro. per.,*and oral argument by *Mr. Lines*and *Mr. Tibbs.*

Timlin, J.

The final order in a special proceeding is by statute appealable. The parties hereunto consented that in and by this order in the matter of the guardianship of Albert F. Abel the circuit court should ascertain and determine the amount of attorneys’ fees, if any, to which respondents might be entitled, but did not agree that the finding on this subject should be conclusive or waive their right of appeal. We cannot, therefore, dismiss this- appeal. Upon the foregoing showing no allowance should have been made to respondents. On the merits of their claim *nostra tacita clamant. Bcepe tacens vocem verbaque vultus Jiabet. “Tacita qucedam haben-twr pro expresses.”*

*By the Court.*— The order of the circuit court is reversed, and the cause remanded with' directions to disallow all compensation to respondents.