The Hawaiian gazette., 1904-01-26
MAGOON OUT
A THOUSAND
Fee Reduced and Justice
GaIbraith Objects
to Any Fee.

|
| Court declares, in the matter of the
guardianship of Rebecca Panee Hume
ku, spendthrift, the law as follows:
| "a guardian who is an attorney at
| extra compensation for professional
services rendered for the benefit of the
ward.
Under the circumstances of this
case, fee of s1250 held excessive and
$3.50 allowed as reasonable fee"
Chief Justice Frear and Justice Perry
| sign the opinion, which is written by
| the latter. Il. NJ. Watson, as next
| friend. appeared for the ward. and j.
| A. Magoon in person. Magoon was al
lowed a fee of $3.50 as his own attorney
in resisting a petition by Mrs. Humeku
| to terminate his guardianship of her.
The allowance of this fee by Judg"
| Gear was sought by the ward to be set
aside, on the grounds that Magoon's
contest was in his own personal inter-
! est and that the fee was excessive.
The majority opinion deals with the
first ground thus:
las we understand the argument for
lDt WaTu, IL Is lloI COHltlubu lHdl eNlId
compensation may not in any case be
allowed a guardian who is an attorney,
! for legal services rendered. Elsewhere
the decisions on the subject are not
uniform. In this jurisdiction it has be-
come the established practice to allow
such compensation in proper cases. See
In re Estate of Kalua Kapukini, ii
Haw. 204; Magoon VS.. Brash ct al, IL
Haw. 204, and also In re Estate of
Hiram Maikai, 8 Haw. 500 An the case
at bar, Magoon's appearance and his
resistance of the application We're for
the benefit of the ward; it was the
guardians duty, under the circum-
stancs of the case, to appear and de-
fend. Upon the record we find no rea-
son for holding that the resistance Of
fered was solely in the personal interest
of Mr.. Magoon."
On the question of whether the fee
was excessive, the opinion goes into
particulars of the services rendered.
1t presumes that Judge Gear was guild
ed by the decision OF Judge De Bolt in
allowing Thomas Fitch, by consent OF
the ward in court, fee of $3.50 for
attacking the guardianship. In cutting
down the fee to $3.50 and remanding the
case to the Circuit Judge for further
proceedings the majority says:
I'm any event, this court is not
bound by the standard of measurement
adopted by the Circuit Judge. 1t may
be added that no more can be allowed
to Mr.. Magoon than the latter as guar
dian would have been, under all of the |
circumstances of the case, justified III
paying if he had employed other coun-
sci; and in the latter event acting, az |
he was, in a fiduciary capacity, he |
would not have been at liberty to en-
ploy counsel at fancy figures, but it |
would have been his duty to bear in |
mind always the ability of the wards |
estate to pay, as well as the other cir
cumstances, and to secure assistance |
at cost that would be reasonable"
Justice Galbraith, in a dissenting |
opinion says:
THE established practice in this
jurisdiction, of allowing additional COM
pensation to administrators and guar
dams, for legal services rendered by
themselves, rests upon no stronger
ground, it seems, than an occasional
allowance of such claim'
He quotes the Makai case as the first
adoption of the rule, saying that in
that early decision mo attempt was
made by the court to justify the adop-
ton of the rule by argument or the
citation of authorities of any kind
The two subsequent cases cited
followed the earlier case as an author
ity without question"
Proceeding, Justice Galbraith gives
the gist of his opinion on the principle
in the following paragraph:
'"rhe practice of allowing fees, in ad-
dition to the statutory commissions, to
members of the bar who may be guar"
dams, or act in other trust capacities,
for legal services is wrong in theory
and pernicious in practice. 1t was new
er contemplated that the Office of guar
dian should be one of great profit or
that it should be sought on account of
it's emoluments, The position of guar
dian is not thrust upon one against his
will. 1t is usually sought for Phi
lanthropy and not avarice is supposed
to be the motive that should prompt
one to seek the place."
An Illinois case decided in similar
terms to the expressions just quoted is
cited, and the dissenting Justice says;
ITO permit Mr.. Magoon the guardian
to employ Mr.. Magoon the attorney 70
represent the guardian in a lawsuit and
allow him fee of $3.50 or any other
amount from the estate, would place
the guardian in position where his in
terest might oppose his duty"
1t is argued that the compensation
for his services" which the statute
allows a guardian, has been fully paid
to Mr.. Magoon in the commissions al
lowed him annually of ten per cent
and seven per cent as prescribed by
statute in such cases provided