LIAS APPEAL, 373 Pa. 438 (1953)

96 A.2d 143

Supreme Court of Pennsylvania.March 25, 1953.
April 22, 1953.

Guardian and ward — Weak-minded persons — Counsel fees — Reasonableness — Determination by auditing judge — Objections — Appellate review — Incompetents’ Estates Act of 1951.

1. Under § 612 of the Incompetents’ Estates Act of 1951, P. L. 612, upon the audit of the account of the guardian of a person who has died during incompetency, it is within the authority of the auditing judge to review the reasonableness of the fees of counsel for the guardian, and it is immaterial that no party in interest has filed objections to the amount of counsel fees claimed. [440]

2. The amount of fees to be allowed counsel is one peculiarly within the discretion of the court of first instance, and its decision will not be interfered with except for palpable error. [440]

Before STERN, C. J., STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.

Appeal, No. 64, March T., 1953, from order of Court of Common Pleas of Allegheny County, Jan. T., 1951, No. 248, in re Appointment of a Guardian for Estate of Maude E. Palmer (later amended to Maud A. Palmer), a Weak-minded Person. Order affirmed.

Audit of final account of guardian of estate of weak-minded person. Before MONTGOMERY, J.

Adjudication filed disallowing counsel fees in part; exceptions to adjudication dismissed and final order entered. Exceptants appealed.

W. Denning Stewart, with him Stewart Jones, for appellants.

No argument was made nor brief submitted for appellee.

OPINION PER CURIAM, April 22, 1953:

Maud A. Palmer, now deceased, was adjudicated a weak-minded person on October 27, 1950. The Mellon National Bank and Trust Company was appointed

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guardian of her estate on condition that it accept as counsel Dale T. Lias, Esquire, and William Kaufman, Esquire. The Mellon National Bank and Trust Company refused to accept the appointment of guardian on that condition; whereupon, the court, on April 6, 1951, designated it as merely temporary bailiff or receiver, and appointed the Commonwealth Trust Company as permanent guardian. Miss Palmer died on August 10, 1951. On March 21, 1952 the Mellon National Bank and Trust Company filed its account as temporary bailiff or receiver, and on April 17, 1952, the Commonwealth Trust Company filed its first and final account as permanent guardian.

On July 8, 1952, the court entered its orders of confirmation and distribution of the said accounts of the temporary guardian and of the permanent guardian. Exceptions to the said orders of confirmation were filed by the appellants, Dale T. Lias, Esquire, and Harvey Miller, Esquire, who represented the temporary guardian as well as a niece of Miss Palmer, Mrs. Florence Harvey (Petitioner for the appointment of the guardian). The exceptions were based on the court’s allowance of only $2500 of the $5,500 claimed by appellants for counsel fees. Appellants also claimed $325 for expenses of an appeal to the Superior Court which had been dismissed as having become moot as a result of Miss Palmer’s death.[1] No party in interest had filed

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any objections to the amount of appellants’ claim, but the court below, sua sponte, reduced the amount and allowed $2500 as a “fair and reasonable compensation” and so decreed in its orders of confirmation.

It was within the authority of the auditing judge to review the reasonableness of the fees. Article VI, Section 612 (50 P.S. 1902) of the new Incompetents’ Estates Act of 1951, June 28, P. L. 612 (50 P.S. 1631 et seq.)[2] provides: “Upon the audit of the account of the guardian of a person who has died during incompetency, the auditing judge or auditor passing on the account shall not pass upon any claims against the estate of the incompetent other than necessary administration expenses, including compensation of the guardian and his attorney . . .” (Emphasis supplied) The auditing judge had authority to pass upon the issue of the reasonableness of the fees in question, and it was immaterial that no party in interest filed objections to the amount of the counsel fees claimed by appellants. This case thus falls within the general rule that the amount of fees to be allowed counsel is one peculiarly within the discretion of the court of first instance, and its decision will not be interfered with except for palpable error. We find no such error.

The order of the court below is affirmed. Costs to be paid out of estate.

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