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BROWARSKY ESTATE (03/20/70)

decided: March 20, 1970.

BROWARSKY ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 1821 of 1954, in re estate of Ike Browarsky, deceased.

COUNSEL

John J. Dean, with him Dean & Dean, for appellants.

Donald C. Bush and Harry Woodruff Turner, with them David M. Janavitz, Thomas N. Griggs, and Janavitz & Janavitz, and Griggs, Moreland, Blair & Anderson, and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Pomeroy took no part in the consideration or decision of this case.

Author: Jones

[ 437 Pa. Page 284]

Ike Browarsky died on April 19, 1954, leaving a will under the terms of which Dr. Lewis Sheppard and Dora Foster were named executors and trustees. The will provided for devises and bequests to, among others, Dr. Lewis Sheppard, Dora Foster, and Sadie Sheppard (Dr. Sheppard's mother, also known as Sadie Shapero Browarsky). The residue of the estate was left to the present appellants.

After a considerable amount of litigation, a final decree of distribution was entered April 20, 1967, to which decree the residuary beneficiaries filed exceptions designed to surcharge the co-executors, Dr. Sheppard and Dora Foster. These exceptions were dismissed by the then Orphans' Court of Allegheny County, sitting en banc, on May 31, 1967, and this Court affirmed that decree, per curiam, on January 3, 1968.*fn1

Three attorneys served as counsel in opposition to the attempted surcharge of the executors, i.e. : David Janavitz, Esquire, who represented the estate and had held that position since testator's death in 1954; Thomas Griggs, Esquire, who represented Lewis Sheppard as co-executor, and had been retained in July of 1966 specifically to handle the surcharge litigation; and, John Frazer, Esquire, who represented Dora Foster in her capacity as co-executrix and had been previously retained by her to pursue certain claims she had, as an individual, against the estate. After the matter of the surcharge had been disposed of, the three attorneys

[ 437 Pa. Page 285]

    petitioned the Orphans' Court for the allowance of their fees to be paid by the estate, as follows: David Janavitz -- $2,000; Thomas Griggs -- $7,800; John Frazer -- $2,000. Because any payments by the estate would be drawn from the residue, the residuary legatees contested this petition for the allowance of fees. The lower court granted the petition, and the instant appeal followed.

We begin our consideration with an explanation of why it was appropriate for the attorneys for the executors to seek payment of their fees from the estate. The executors were placed in the position to be sued because of duties they had performed for the estate. That being the case, it would be unjust to require them personally to bear the reasonable costs of the defense of suits brought against them solely by reason of their positions as executors. "It is well established that whenever there is an unsuccessful attempt by a beneficiary to surcharge a fiduciary the latter is entitled to an allowance out of the estate to pay for counsel fees and necessary expenditures in defending himself against the attack [citing cases]." Wormley Estate, 359 Pa. 295, 300-01, 59 A.2d 98, 100 (1948). Accord: Coulter Estate, 379 Pa. 209, 108 A.2d 681 (1954). Thus, it is clear that the estate was obligated to pay the reasonable costs of defending against the attempted surcharge of the executors by the residuary beneficiaries, the present appellants.

The question presented to the court below involved the propriety of the amount of the fees requested. In Fraiman Estate, 408 Pa. 442, 445, 184 A.2d 494, 495 (1962), we noted that the scope of our review, in cases such as that presently before us, is limited to a consideration of whether the lower court clearly abused its discretion. "In passing upon the amount of counsel fee we bear ...


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