No. 73 March Term 1978, Appeal from Decree of Washington County Court of Common Pleas, Orphans' Court Division, No. 63-70-316, dated April 27, 1978.
James H. McCune, Washington, James W. Frey, Hoppe, Frey, Hewitt & Milligan, Warren, Ohio, pro hac vice, for appellant.
Robert F. Patton, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
The single issue presented by this appeal*fn1 is whether the chancellor's award of counsel fees to attorneys for the corporate trustee of a testamentary trust was in such an amount as to constitute abuse of discretion by the chancellor. We find no abuse of discretion and, therefore, affirm the decree.
As set forth by the chancellor, the factual background of the testamentary trust which appellee represented is as follows: Walter Baker died on June 26, 1947, and by the terms of his will he created a testamentary trust for his second wife, Wilma L. Baker. The trust was to be administered by The Union National Bank of Pittsburgh (the corporate
trustee) and an individual named Edward L. Stockdale.*fn2 The trust was to continue during the lifetime of Mrs. Baker, who died on May 4, 1963, and then for the life of her son by a previous marriage, Garrett B. LeVan. At Mr. LeVan's death on February 16, 1976, the trust corpus was to be distributed to his issue, per stirpes, (namely his four children, all of whom survived him).
At the time that assets were transferred from Mr. Baker's estate to the trustee on December 18, 1950 (the starting date of the trust's administration), their value was approximately $1,041,000.00. At the termination of said trust, on February 16, 1976, the assets were valued at approximately $2,090,000.00, or an increase in market value of approximately $1,050,000.00. Over the approximately twenty-five years of the trust's administration, it generated over two million dollars in income.
Upon the death of Mr. LeVan, the trustees filed the fourth and final account and an audit of the same was held before the chancellor on May 17, 1976. Shown in this account as chargeable against the trust's principal was a fee balance due the trustees' attorney, appellee, in the amount of $34,800.00. The remaindermen appellants, (children of Garrett B. LeVan) filed exceptions to the proposed schedule of distribution stating that the attorney's fees were excessively high, and further amended exceptions were filed alleging, inter alia, that the attorney for the trustees had been compensated previously for services rendered. After an evidentiary hearing, the entry of a decree nisi, and consideration and denial of exceptions to that decree, the chancellor entered a final decree awarding $32,255.47 to appellee for legal services rendered to the trust during its duration.
As to the propriety of the amount of a chancellor's or auditing judge's award of counsel fees, our ...