Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1897-08-11
JUDGE GRIMM'S RULING.
Amount of Attorneys Fees in Cole
Estate Litigation - What Property
Should Be Sold to Meet Expenses. o

The decision of Judge Grimm, of
the county court, on the application for
allowance of attorneys fees in the
John w. Cole estate litigation, was
filed Saturday. Each of the three
attorneys nterested-Harlow Pease,
L. B. Caswell and w. H. Rogers-is
allowed 1865 fees, together with costs
and disbursements. Judge Grimm
contends that the property to be dis
posed of to meet the expenses of the
litigation is that set apart from the
trust estate by the decision of the
supreme court, namely, the race track
farm in Emmett and the twenty-acre
tract in the Seventh ward, which
have been appraised at $40, 500 Fol
lowing is the judges ruling in part:
The decision on this application has been
full of difficulties. Ihave been directed by the
supreme court to allow to the parties for coun-
sci ices such sums out of the estate las in the
exercise OF 4 sound discretion may be just" )"
The action was neither brought nor tried in
this court, and / am therefore wholly unfamiI-
lar with the labor performed by the respective
attorneys except so far as the testimony taken
before me on this hearing diSclOSeS. Only two
witnesses were offered to be sworn and their
testimony and the court records and files in
the case In the circuit and supreme courts. and
the records and files in the matter OF the estate
IN this court, are the only things presented to
guide my discretion. Ii is not claimed by
either party that l am to fix the value of the
services OF the respective attorneys, and evi-
dence was not offered with that end in view !;
on the contrary, it Is maintained that am only
to nix the sum which justly the estate should
contribute toward the payment of these SER
vices. II that be the true meaning Of the
direction, and | am inclined to think it is,
many of the ordinary elements that 20 to fix
the compensation between client and attorney,
such as the extent of the responsibility as
Sumed and value of the result ACCOMPLISHED,
are only incidentally to be considered, that is,
so far as they go to show tie ability required
and employed in the performance of the SER
vices in question. In other words, the estate
does not sustain the relation to the attorneys
that client does and should not be held TO
pay more than equally competent and reliable
attorneys could have been employed for under
the direction Of this court. il such were per-
mItted, to do the necessary work in obtaining
a fnal construction Of the Will. 1t is obvious
that the estate is not benefited by the result,
as 1t Is affected equally by the favorable and
unfavorable parts of the final decision; it is
only the certainty of Its status which is of
benefit to 1T. For this it should in justice be
held to pay what the labor and skill is reason
ably worth, and leave the parties who have
been benefited to compensate their attorneys
IN proportion to the value, if they please of
the result accomplished, or according to their
contract, or otherwise. The oral and docu-
IltuIdIS 6NlutLC6, Nul1e II OOeS not clearly nX
the time and labor employed by the respective
attorneys, yet sufficiently indicates that it
must have been cOnSldera BILE; and it does show
the case to have been one of considera BILE mag
nltude, hOtly contested and requiring skill and
legal ability. From all the evidence | am led
to believe that an allowance of $3.50 to each of
the three contestlng parties as counsel fees is
entirely reasonable. | Will therefore allow
each of the contestlng parties that amount and
their costs and disbursements as taxed and
ordered IN the final judgment of the circuit
n oil al, 3
tOrneys additional sum of $l5 on this hear
ing with costs and disbursements of the petit
tloner, BILE costs to cover only the papers
necessarily filed and served.
In regard to the fund out of which
these costs shall be paid, after review
ing some of the authorities, the opinion
concludes as follows:
1t has again been contended on the hearing
OF this application that the allowance made
under the direction of the supreme court
should be ordered paid out of the income of the
trust estate. No sufficient reason has been
urged to cause me to change my decision re-
Gently rendered on the petition for revocation
of the license to sell the homestead. This
question was then fully argued and carefully
considered. L there held that the costs in the
litigation for construction of the will were
part of the expense of administration of the
estate and Incidental to the proper settlement
thereof which the executors incurred as such
and not as trustees of the residum of the estate.
The income was distinctly subjected by the
testatOr only to the payment of costs of repairs
and insurance and the annual taxes and as
SeSSmentS and expenses of administering said
trust;" the word said refers back to the trust
Immediately before created. This trust is
clearly distinguishable from the general trust
which every executor assumes III the settlement
of an estate and its necessary expenses are
equally distlnguiSha ble The intention of the
teStatOr seems too clear for misunderstanding
and briefly stated was that the widow and son
should have the certain specific devices he
mentioned and the net income from his whole
estate while they lived, and all the rest he
desired the city to have. The income is given
SO far pertains to the widow in lieu of
dover and under all the authorities she is en-
titled to it from the time of the testatOrs
death, deducting therefrom only such charges
as he intended to and did cucumber it with.
to what the income is chargeable with, or had
the will been silent in that regard, it may be
that a different rule would apply; but by
charging it with certain things he by implica-
tion exempted it from all other At present at
least, while there are two estates in remainder
in property appraised at $40 sou, undisposed of
by the will and chargeable by law with the
payment of the debts, funeral expenses and
costs of administration of the estate [ have
no authority to direct the payment of any part
out OF any other fund, or property, except upon
| the theory that the costs and expenses in
trust; and this in my opinion they are not
They have paved the way for a final settlement
of the estate and determine the extent of the
trust created by the will, but cannot upon any
theory be held to be part of the expense OF
administering the trust itself The order will
therefore direct that the ssevera! sums stated
shall be paid by the executors within a reason
able time out of the property chargeable with
the same under my ruling.