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In Re Estate of Breault

NOVEMBER 6, 1975.

IN RE ESTATE OF OSCAR J. BREAULT, DECEASED. — (HIRSCH E. SOBLE, PETITIONER-APPELLANT,

v.

HAROLD L. FEIGENHOLTZ, EX'R AND TRUSTEE UNDER THE WILL OF OSCAR J. BREAULT, DECEASED, AND TRUSTEE UNDER THE WILL OF KATHRYN M. BREAULT, DECEASED, ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Petitioner Hirsch E. Soble was the attorney for the estate of Oscar Breault until 1971, when Soble retired from the active practice of law. The estate of Oscar Breault has been involved in many legal disputes in both the Illinois and Federal courts, and petitioner expended much time and energy in defending the will of Oscar Breault from attack. Soble has been paid $117,070 for his legal services through 1966. This case is concerned with Soble's petition to the Probate Division of the circuit court of Cook County for payment of $35,080 for his legal services from 1967 through 1971. The trial court denied the petition and this appeal follows.

We affirm in part, reverse in part and remand with directions.

Oscar Breault died testate in 1959 and the legal battles have been raging ever since. (In re Estate of Breault (1963), 29 Ill.2d 165; Breault v. Feigenholtz (N.D. Ill. 1965), 250 F. Supp. 551, aff'd (7th Cir. 1966), 358 F.2d 39, cert. denied (1966), 385 U.S. 824, 17 L.Ed.2d 61, 87 S.Ct. 52; In re Estate of Breault (1965), 63 Ill. App.2d 246; Breault v. Feigenholtz (7th Cir. 1967), 380 F.2d 90, cert. denied, 389 U.S. 1014, 19 L.Ed.2d 660, 88 S.Ct. 591; People ex rel. Dahm v. Corcoran (1968), 39 Ill.2d 233; In re Estate of Breault (1969), 113 Ill. App.2d 356, leave to appeal denied; Breault v. Feigenholtz (1970), 128 Ill. App.2d 1, rev'd (1973), 54 Ill.2d 185; In re Estate of Breault (1971), 1 Ill. App.3d 899 (abstract opinion), leave to appeal denied; Breault v. Feigenholtz (1973), 54 Ill.2d 173.) Soble, as attorney for Feigenholtz, the executor of Breault's estate, has already received compensation for his legal services rendered through 1966. Fees of $45,000 were awarded for work to February, 1964, and affirmed by this court. (In re Estate of Breault (1965), 63 Ill. App.2d 246.) Supplemental fees of $22,630 for the same period were subsequently awarded. Fees of $49,400 for work performed from February, 1964, to January, 1967, were awarded by the circuit court and affirmed by this court. (In re Estate of Breault (1971), 1 Ill. App.3d 899, leave to appeal denied.) Herein, petitioner is requesting $35,080 for services he performed between January, 1967, and March, 1972. The legal services performed relate to four cases.

The first case is Breault v. Feigenholtz (7th Cir. 1967), 380 F.2d 90, cert. denied, 389 U.S. 1014, 19 L.Ed.2d 660, 88 S.Ct. 591, wherein petitioner represented Oscar's estate in a will contest. As a result of Soble's timely objection on the grounds of lack of Federal jurisdiction, the suit was ultimately dismissed. The evidence shows that Soble rendered 234 hours of work in the matter.

The second case is In re Estate of Breault (1969), 113 Ill. App.2d 356, leave to appeal denied, wherein a petition to contest the validity of Oscar's will was dismissed as a result of Soble's timely action on behalf of the estate. The executor of the estate was then ordered by the circuit court to defend against the ensuing appeal. The evidence shows that Soble rendered 348.75 hours of work in the matter.

The third case involved a petition to remove Feigenholtz as the executor of Oscar's estate. Soble represented Feigenholtz and the petition was dismissed. The evidence shows that Soble rendered 76.5 hours of work in the matter.

The fourth and final case is In re Estate of Breault (1971), 1 Ill. App.3d 899, leave to appeal denied. The case involved Soble's petition for the payment of legal fees, as discussed above. The evidence shows that Soble rendered 217.75 hours of work in the matter.

Soble's petition in the instant case alleges that he provided 877 hours of legal services worth $35,080 which constituted an expense of administration of Oscar's estate and was "directly related to, and reasonable and necessarily incurred in the performance of the executor's statutory duty."

As discussed in the prior Breault cases, expenses of Oscar's estate are to be paid from the estate of his mother, Kathryn Breault. (In re Estate of Breault (1965), 63 Ill. App.2d 246.) Accordingly, the executors of both Oscar's and Kathryn's estates were served with notice of Soble's petition for legal fees, and appeared to contest the petition.

After hearing the evidence and arguments of counsel, the trial court denied Soble's petition for fees for two reasons. The first reason was that since Soble had already received $117,070, "any fees, additional fees, will not only be excessive but I think unconscionable." The second reason was that there would be claims from other counsel and the court was concerned with depletion of the estate. On appeal, petitioner argues that there was no competent evidence to support the court's conclusion that the estate would be depleted, so that the trial court erred in denial of the petition.

• 1 Our first consideration is whether under the law petitioner is entitled to compensation for the legal services he rendered in the Breault cases between 1967 and 1972. The applicable law was stated in the initial case dealing with Mr. Soble's claims for fees, In re Estate of Breault (1965), 63 Ill. App.2d 246, 254:

"It is well established that the probate court had the right to allow an executor credit in his account for reasonable attorney's fees for aid in enabling such officer properly and efficiently to perform the duties of his office. In re Gilbert's Estate, 319 Ill. App. 15, 19, 48 N.E.2d 567, 569 (1943). Moreover, this right of the executor to procure legal services and grant compensation for such is expressly recognized in Illinois by Statute. Ill Rev Stats 1963, c.3, § 337. The attorney's fees should be allowed commensurate with actual services rendered necessary to the orderly and prompt closing of the estate and protection of its assets. In re William's Estate, 324 Ill. App. 584, 59 N.E.2d 333 (1945). However, where the services are not in the interest of the estate but rather in the interest of the executor, counsel's fees will be rejected. (James, Ill. Probate Law and Practice, Vol. 5, pp. 510, 511)."

The material issue herein, as well as in the 1965 case, is whether or not the services rendered were in ...


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