OTIS ANGEL; HAZEL ANGEL; ELDORA GIVENS; THEOLLA PARKER; MARGIE ANN OSBORNE; JAMES RICHARD ANGEL; ROGER ANGEL; MELISSA HINKLE; KATHY HAMM; MIKE HINKLE; CARL HINKLE, JR.; KEVIN HINKLE; BRUCE ANGEL; ADDIE ANGEL; NINA ANGEL; GOLDIE ANGEL MORGAN; BETTY GIBBS; BARTIE BULLOCK; EVERETT ADKINS; PAULINE ADKINS; HAROLD PREWITT; OTTO PREWITT, SR.; TROY PREWITT; AND REBA BROWN v. W.H. (HERMAN) MCKEEHAN, co-executor of the ANGEL, co-executor of the estate of THELMA ANGEL, deceased; W.H. (HERMAN) MCKEENAN, INDIVIDUALLY; GERALDINE MCKEENAN, INDIVIDUALLY; GENEVA SINGLETON; WALLACE SINGLETON; CHARLES L. HILL; GAYLE HILL; RUBY MCKEEHAN; K.D. MCKEENAN; KIM MCKEEHAN; T.J. MCKEEHAN; ANNETTE MCKEEHAN; VERNEDA STURGILL; ROBERT B. STURGILL; VERNA LEE BRUCE; EDWARD BRUCE; VERLDON SMITH; BILLIE MARRIEL SMITH; VERNON SMITH; WARDELL SMITH; VIRGIE MCKEEHAN; WANDA JEAN COCKS; DAVID COCKS; SHELBY JEAN TAYLOR; TOMMY TAYLOR; BILLY DEAN MCKEEHAN; SANDY MCKEEHAN; OZENE MCKEEHAN; CAROL MCKEEHAN; JIMMY DALE MCKEEHAN; SANDY MCKEEHAN; LINDA MCKEEHAN MIRSHON; MARY KATHERINE MCKEEHAN HANNON; DAVID S. HANNON; VICKY MCKEEHAN ANDREWS; ROSALIE MCKEEHAN; RHODA HAMBLIN; BEVERLY ANGEL; UNKNOWN SPOUSES; UNKNOWN HEIRS; W.M. COX, JR.
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RENDERED:
December 7, 2001; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001674-MR
OTIS ANGEL; HAZEL ANGEL; ELDORA GIVENS;
THEOLLA PARKER; MARGIE ANN OSBORNE;
JAMES RICHARD ANGEL; ROGER ANGEL;
MELISSA HINKLE; KATHY HAMM; MIKE HINKLE;
CARL HINKLE, JR.; KEVIN HINKLE;
BRUCE ANGEL; ADDIE ANGEL; NINA ANGEL;
GOLDIE ANGEL MORGAN; BETTY GIBBS;
BARTIE BULLOCK; EVERETT ADKINS;
PAULINE ADKINS; HAROLD PREWITT;
OTTO PREWITT, SR.; TROY PREWITT; AND
REBA BROWN
v.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 99-CI-00187
W.H. (HERMAN) MCKEEHAN, co-executor of the
estate of THELMA ANGEL, deceased; EVERETT
ANGEL, co-executor of the estate of THELMA
ANGEL, deceased; W.H. (HERMAN) MCKEENAN,
INDIVIDUALLY; GERALDINE MCKEENAN, INDIVIDUALLY;
GENEVA SINGLETON; WALLACE SINGLETON;
CHARLES L. HILL; GAYLE HILL; RUBY MCKEEHAN;
K.D. MCKEENAN; KIM MCKEEHAN; T.J. MCKEEHAN;
ANNETTE MCKEEHAN; VERNEDA STURGILL;
ROBERT B. STURGILL; VERNA LEE BRUCE;
EDWARD BRUCE; VERLDON SMITH; BILLIE MARRIEL
SMITH; VERNON SMITH; WARDELL SMITH;
VIRGIE MCKEEHAN; WANDA JEAN COCKS; DAVID COCKS;
SHELBY JEAN TAYLOR; TOMMY TAYLOR; BILLY DEAN
MCKEEHAN; SANDY MCKEEHAN; OZENE MCKEEHAN;
CAROL MCKEEHAN; JIMMY DALE MCKEEHAN;
SANDY MCKEEHAN; LINDA MCKEEHAN MIRSHON;
MARY KATHERINE MCKEEHAN HANNON; DAVID S.
HANNON; VICKY MCKEEHAN ANDREWS;
ROSALIE MCKEEHAN; RHODA HAMBLIN;
BEVERLY ANGEL; UNKNOWN SPOUSES;
UNKNOWN HEIRS; W.M. COX, JR.
and
APPELLANTS
NO. 2000-CA-002328-MR
APPELLEES
OTIS ANGEL; HAZEL ANGEL; ELDORA GIVENS;
THEOLLA PARKER; MARGIE ANN OSBORNE;
JAMES RICHARD ANGEL; ROGER ANGEL;
MELISSA HINKLE; KATHY HAMM; MIKE HINKLE;
CARL HINKLE, JR.; KEVIN HINKLE;
BRUCE ANGEL; ADDIE ANGEL; NINA ANGEL;
GOLDIE ANGEL MORGAN; BETTY GIBBS;
BARTIE BULLOCK; EVERETT ADKINS;
PAULINE ADKINS; HAROLD PREWITT;
OTTO PREWITT, SR.; TROY PREWITT; AND
REBA BROWN
v.
APPELLANTS
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 99-CI-00187
W.H. (HERMAN) MCKEEHAN, co-executor of the
estate of THELMA ANGEL, deceased; EVERETT
ANGEL, co-executor of the estate of THELMA
ANGEL, deceased; W.H. (HERMAN) MCKEENAN,
INDIVIDUALLY; GERALDINE MCKEENAN, INDIVIDUALLY;
GENEVA SINGLETON; WALLACE SINGLETON;
CHARLES L. HILL; GAYLE HILL; RUBY MCKEEHAN;
K.D. MCKEENAN; KIM MCKEEHAN; T.J. MCKEEHAN;
ANNETTE MCKEEHAN; VERNEDA STURGILL;
ROBERT B. STURGILL; VERNA LEE BRUCE;
EDWARD BRUCE; VERLDON SMITH; BILLIE MARRIEL
SMITH; VERNON SMITH; WARDELL SMITH;
VIRGIE MCKEEHAN; WANDA JEAN COCKS; DAVID COCKS;
SHELBY JEAN TAYLOR; TOMMY TAYLOR; BILLY DEAN
MCKEEHAN; SANDY MCKEEHAN; OZENE MCKEEHAN;
CAROL MCKEEHAN; JIMMY DALE MCKEEHAN;
SANDY MCKEEHAN; LINDA MCKEEHAN MIRSHON;
MARY KATHERINE MCKEEHAN HANNON; DAVID S.
HANNON; VICKY MCKEEHAN ANDREWS;
ROSALIE MCKEEHAN; RHODA HAMBLIN;
BEVERLY ANGEL; THE UNKNOWN HEIRS, DEVISEES
AND LEGATEES; UNKNOWN SPOUSES OF THESE
DEFENDANTS; AND MAXIE HIGGASON
APPELLEES
OPINION
REVERSING AND REMANDING AS TO NO. 2000-CA-01674-MR
AND
REVERSING AND VACATING AS TO NO. 2000-CA-002328-MR
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
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McANULTY, JUDGE:
In the appeal styled 2000-CA-001674-MR, the
surviving relatives and heirs of Luke Angel, deceased, and the
heirs of Thelma Angel, deceased, (the Angels) appeal a June 13,
2000 findings of facts, conclusions of law and judgment of the
Whitley Circuit Court that granted summary judgment in favor of
the surviving relatives and heirs of Thelma McKeehan Angel,
deceased, and the heirs of Luke Angel (the McKeehans).
In the
June 13, 2000 judgment, the circuit court found that Thelma
Angel’s will, instead of Luke Angel’s will, controlled the
distribution of certain property between the Angels and the
McKeehans.
The Angels also appeal from another June 13, 2000
order of the Whitley Circuit Court that awarded W.M. Cox, Jr.,
the attorney for W.H. (Herman) McKeehan and Everett Angel, the
co-executors of Thelma Angel’s estate, attorney’s fees of
$20,630.00, which was ten percent of the sales proceeds of the
property in question, to be deducted from the sales proceeds.
In the appeal styled 2000-CA-002328-MR, the Angels
appeal from July 3, 2000 order of the Whitley Circuit Court that
awarded Maxie Higgason, the attorney for the McKeehans,
attorney’s fees of $10,000.00 to be deducted from the sales
proceeds of the above mentioned property.
After review of the record and counsels’ arguments, in
appeal styled 2000-CA-001674-MR, we reverse and remand.
In
appeal styled 2000-CA-002328-MR, we reverse and vacate.
Luke Angel (Luke) and Thelma Angel (Thelma) were
married, however, they had no children.
On January 22, 1952,
Luke Angel executed his last will and testament that read in
pertinent part:
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2nd. Excepting the above, I give
bequeath and devise to my beloved wife,
Thelma Angel, all of the property I may own
or have the right to dispose of at the time
of my death, including real, personal and
mixed wheresoever situated, to be held, used
or spent by her for any purpose she may
desire to spend or use the same, during her
natural life, with the only limitations
thereon, that should any portion of said
property remain in her hands at the death of
my said wife that is over and above what is
needed to pay her debts and funeral expenses,
then and in that event, I give bequeath and
devise that portion of said property that is
so left, as follows:
. . . .
Second. Should we not have a child or
children, then and in that event, said
property from my estate not disposed of by my
said wife, shall pass one half to my brothers
and sisters, and one half to the relatives of
my wife, as follows: My brothers and sisters
to whom one half shall pass are, Harry Angel,
Kelly Angel, Otis Angel, John D. Angel and
Junice Prewitt.
The relatives of my wife to inherit one
half of said remaining property, if there is
any, are as follows: Her mother, Rebecca
McKeehan, and following brothers and sisters:
Nellie Hill, Marie Smith, Rosalee McKeehan,
Rhoda Hamblin, S.L. McKeehan, Siler McKeehan,
Edwin McKeehan and Herman McKeehan.
On September 17, 1980, Luke died and his will was duly probated.
Pursuant to Luke’s will, Thelma took the property that became the
subject of this appeal.
During her life time, Thelma disposed of
none of the property she inherited from Luke.
On March 26, 1991, Thelma executed a will disposing of
all of her property including the property she inherited from
Luke via his will.
In 1998, Thelma died and the Whitley probate
court appointed W.H. (Herman) McKeehan and Everett Angel as coexecutors of her estate.
On April 6, 1999, not knowing which of
the two wills controlled the distribution of the property, the
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co-executors filed a declaration of rights action naming both the
Angels and the McKeehans as co-defendants.
On September 10, 1999, the co-executors moved the
circuit court for leave to submit the case for declaratory
judgment and for an order to sell the property.
On October 13,
1999, the circuit court ordered the property sold by a master
commissioner and the proceeds distributed according to the
court’s subsequent order.
After the property was sold, the
master commissioner reported to the circuit court that the sales
proceeds were $206,300.00.
On September 22, 1999, the Angels filed a motion for
summary judgment.
The Angels asserted that there was no issue of
material fact in dispute and argued that Luke’s will bequeathed
to Thelma a consuming life estate with the remainder split fiftyfifty between the Angels and the McKeehans.
Further, the Angels
contended that since Thelma had only a life estate in the
property, she could not dispose of it through her will.
Accordingly, Thelma’s will was void regarding the property she
inherited from Luke; therefore, Luke’s will controlled the
distribution of the property in question.
On October 4, 1999, the McKeehans filed a cross motion
for summary judgment.
The McKeehans contended that the facts
were not in dispute and argued that Luke’s will conveyed his
property to Thelma in fee simple.
Since she took the property in
fee, she had the right to dispose of it though her will; thus,
her will controlled the distribution.
On June 13, 2000, the Whitley Circuit Court issued its
finding of facts, conclusion of law and judgment.
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The circuit
court held that Luke did in fact convey all of his property to
Thelma in fee simple with the corollary that any that was not
disposed of went to the Angels and the McKeehans according to the
provisions in Luke’s will.
However, the circuit court found that
Thelma had disposed of all the property by her use and by her
will; therefore, the property would be distributed according to
the provisions of Thelma’s will.
Dissatisfied with this outcome,
the Angels appealed.
On January 19, 2000, the co-executors’ attorney, W.M.
Cox, Jr. (Cox), filed a motion with the circuit court requesting
attorney’s fees for his representation of the estate.
Cox cited
Ky. Rev. Stat. (KRS) 412.070 and KRS 453.040 and asked the
circuit court to award him ten percent of the property’s purchase
price, $20,630.00.
In support of this amount, Cox stated that he
had worked approximately two hundred hours on the case, due the
complications caused by the large number of heirs and their
dispute over the distribution of the property.
Cox stated that
he did the vast majority of the legal work involved in the case,
although he had little to no documentation to support this
proposition, other than his affidavit.
We note that neither the
Angels or the McKeehans objected to Cox’s request.
In its June
13, 2000 order, the circuit court awarded Cox $20,630.00 in fees
to be distributed from the sales proceeds.
The Angels appealed
this order along with the circuit court’s judgment regarding the
distribution of the property.
On June 27, 2000, Maxie Higgason (Higgason), attorney
for the McKeehans, filed a motion with the circuit court
requesting attorney’s fees in the amount of $10,000.00.
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In a
July 3, 2000 order, the circuit court awarded Higgason $10,000.00
in attorney’s fees to be distributed from the sales proceeds.
On July 10, 2000, the Angels appealed the July 3, 2000
order in a separate appeal.
Then on July 11, 2000, the Angels,
through a new attorney, filed a motion with the circuit court to
vacate its July 3, 2000 order awarding Higgason attorney’s fees.
The Angels argued that Higgason was not entitled to have his fees
paid out of the sales proceeds.
The Angels contended that only
in limited situations and only when authorized by case law or
statute was a litigant entitled to recover attorney’s fees from
an opposing party, and this situation was not covered by either
case law or statute.
On August 3, 2000, the McKeehans objected
to the Angels’ motion to vacate and argued that the circuit court
had lost jurisdiction when the Angels filed their notice of
appeal on July 10, 2000.
The circuit court agreed and, on August
25, 2000, passed the Angels’ motion stating that it had lost
jurisdiction due to the Angels’ appeal.
On August 31, 2000, the
McKeehans filed a motion with the circuit court and requested it
to modify its August 25, 2000 order to make it final.
On
September 5, 2000, the circuit court issued an amended order that
stated it was a final order and, once more, passed the Angels’
motion to vacate.
In appeal styled 2000-CA-001674-MR, the Angels present
us two assignments of error.
First, the Angels contend that the
trial court erred when it held that Luke’s will gave Thelma the
property in question in fee simple that allowed her to dispose of
it through her will.
Second, the Angels contend that the trial
court erred when it awarded the plaintiffs’ attorney, W.M. Cox,
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Jr., $20,630.00 in attorney’s fee.
In appeal styled 2000-CA-
002328-MR, the Angels present only one assignment of error, that
the trial court erred when it awarded attorney’s fees to Maxie
Higgason, attorney for the McKeehans.
When considering a motion for summary judgment on
appeal, we need not defer to the trial court, “since factual
findings are not at issue.”
502, 508 (1999).
Webb v. Maynard, Ky. App., 32 S.W.3d
We must review the record in a light most
favorable to the party that opposes the motion and resolve all
doubts in his favor, and the movant must have shown that the
party opposing the motion could not have prevailed under any
circumstances.
Id. quoting Scifres v. Kraft, Ky. App. 916 S.W.2d
779, 781 (1996).
When reviewing a trial court’s award of attorney’s fee,
we are limited to determining whether or not the trial court
abused its discretion.
Croley v. Adkins, 305 Ky. 765, 205 S.W.2d
332, 334 (1947) (citations omitted); See also, Gernert v. Liberty
Nat. Bank & Trust Co., 284 Ky. 575, 145 S.W.2d 522 (1940).
In appeal styled 2000-CA-001674-MR, the Angels argue
that the circuit court erred when it found that Luke conveyed his
property to Thelma in fee simple.
The Angels argue that it was
clearly Luke’s intent to give a life estate to Thelma, although
she had the power to dispose of the res of the estate as she saw
fit.
According to the Angels, Luke did not confer upon Thelma
the unlimited power to dispose of the property.
The Angels
contend that the unlimited power of disposition consists of two
elements.
One, it must consist of the power to make inter vivos
disposition of property such as sales and gifts.
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Two, it must
consist of the power to make testamentary dispositions, in other
words, the power to dispose through a will.
The Angles argue
that Luke certainly gave Thelma the power to make inter vivos
dispositions; however, they argue that Luke did not confer upon
Thelma the power to dispose of the property through her will.
The Angels argue that since Luke devised the remainder to his
heirs, he reserved the right to make a testamentary disposition
for himself, which he exercised.
Since Thelma only took a life
estate which expired upon her death, the property must be
distributed according to Luke’s will not Thelma’s.
We agree.
The Angels cite Moore v. Morris, Ky., 258 S.W.2d 908
(1953).
In Moore, the decedent’s will read as follows:
I give, devise and bequeath to my wife,
Carrie May Morris, all of my property, real,
personal and mixed, of whatsoever nature, and
wheresoever situated, that I may own at my
death, to be hers for and during her natural
life with remainder in fee simple to my
daughter, Wilma May Morris. I hereby give my
wife the power to sell and dispose of any
said property during her lifetime and to use
the proceeds as she may see fit and the
purchaser of any of it does not have to look
to the application of the proceeds and if any
of said property be left at her death then
same to pass to my daughter under this item.
I hereby give my wife power to make and sign
any deed or other instrument necessary to
pass title to any of said property and also
power to acknowledge said instruments. Id.
at 909.
The court stated that to determine whether the devisee received a
life estate or a fee two things must be considered.
First, the
court must consider the intent of the testator by looking at the
language of the whole will.
Second, the court must consider
whether the devisee received an unlimited power of disposition.
An unlimited power of disposition includes not only the power to
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make inter vivos disposition but also the power to make a
disposition through a will.
“If she [the devisee] was clothed
with the unqualified power of disposition we have just mentioned,
she was invested with a fee.
On the other hand, if she can only
execute and deliver inter vivos conveyances, she has only a life
estate in the property.”
(parenthetical added) Id. at 910,
quoting Wintuska v. Peart, 237 Ky. 666, 36 S.W.2d 50 (1931);
Evans v. Leer, 232 Ky. 358, 23 S.W.2d 553 (1930); Spicer v.
Spicer, 177 Ky. 400, 197 S.W. 959 (1917); and Angel v. Wood, 153
Ky. 195, 154 S.W. 1103 (1913).
The court held that the decedent
had reserved the right to make testamentary dispositions for
himself; therefore, his widow received a life estate only.
Id.
Moore v. Morris was overruled by Melton v. Wyatt, Ky., 517 S.W.2d
242, 244 (1974) but only, “to the extent that,” Moore placed,
“any limitation on the use or disposition of the property except
the making of a testamentary disposition.”
As to the issue of
life estate versus fee simple, we find the Moore is still
dispositive.
Another case with testamentary language similar to
Luke’s will is Handy v. Crain, Ky., 270 S.W.2d 956 (1954).
Handy, the decedent’s will reads in pertinent part:
In
I give and bequeath to may wife Josephine N.
Crain all of my property of every kind what
soever, real personal and mixed to use,
occupy controle [sic], and dispose of as she
may see proper during her natural life . . .
Id. at 957.
Once more in determining whether the devisee received a life
estate or a fee, the court looked at the devisee’s power to
dispose of the property in question.
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The court stated:
Nor does bestowal of the unlimited right to
convey, standing alone, invest one with a
fee. If the power of disposition is limited
in any way, either as to devisees or grantees
or as to the time of its exercise, the estate
created is not a fee. The unlimited and
absolute power of disposition is required:
and this includes essentially the power to
give, grant, sell and convey by an inter
vivos instrument and devise by a testamentary
document. (citations omitted)(emphasis added)
Id. at 958.
The court held that the decedent intended to convey only a life
estate, even though the devisee had the broad power to convey the
property during her life time.
In the case sub judice, the decedent, Luke Angel, used
very specific language in his will.
He clearly gave Thelma broad
power to convey the property during her life time.
However, he
specifically qualified this with the language, “during her
natural life.”
He expressly instructed how his property was to
be distributed upon Thelma’s death.
He included in his will not
just one, but two clauses regarding this.
Luke obviously
reserved for himself the power to dispose of the property through
a testamentary document, which limited Thelma’s power to dispose
of the property.
Lacking the power to make a testamentary
disposition, Thelma received nothing more than a life estate in
Luke’s property and could not possibly dispose of it through her
own will.
We find that Luke’s will should have controlled the
distribution of the property in question; therefore, we reverse
the circuit court and remand with instructions for the property
to be distributed between the Angels and the McKeehans according
to the provisions of Luke’s will.
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In appeal styled 2000-CA-001674-MR, the Angels argue
that the circuit court abused its discretion in awarding
attorney’s fees to W.M. Cox, Jr., who represented the coexecutors of Thelma’s estate.
Reasonable attorney’s fees are
recoverable pursuant to KRS 412.070, “if one or more of the
legatees, devisees, distributees or parties in interest has
prosecuted for the benefit of others interested with him . . .
[t]his allowance shall be paid out of the funds recovered before
distribution.”
Furthermore, several cases stand for the
proposition that the administrator of an estate who hires an
attorney to aid in the settlement of the estate, can seek
reasonable attorney’s fees, which are chargeable against the
estate.
White v. White, Ky. App., 883 S.W.2d 502, 506 (1994).
See also, In Re Citizens Fid. Bank & Trust, Ky. App., 550 S.W.2d
569 (1977); Greenway v. Irvine’s Ex’r, 234 Ky. 597, 28 S.W.2d 760
(1929); Harding’s Admr. v. Harding, 132 Ky. 133, 116 S.W. 305
(1909).
Clearly, Cox, as representative of Thelma’s estate, was
entitled to compensation from the estate prior to distribution.
However, the statute and the case law make it clear that such
attorney’s fees must be reasonable.
The old Court of Appeals
(now the Kentucky Supreme Court) stated succinctly that in
assessing attorney’s fees, “they must be reasonable, taking into
consideration the character of services rendered, the time
employed, the size of the estate, and the extent of the
litigation.”
Harding’s Admr. v. Harding, supra at 311.
Further,
this court has stated that a trial court errs if it orders
attorney’s fees paid without first making a finding that the fees
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are reasonable.
White v. White, supra at 506.
In situations
where this court has been unable to ascertain from the record
whether or not the trial court abused its discretion in awarding
attorney’s fee, it has reversed and remanded for the trial court
to make such a finding. In Re Citizens Fid. Bank & Trust, supra
at 570.
In the case sub judice, we find that the record lacks
adequate information to allow us to determine whether the circuit
court abused its discretion.
Therefore, we reverse as to the
amount of Cox’s award and remand to the circuit court for an
evidentiary hearing to determine whether the amount of Cox’s
award was reasonable.
Cox should have the opportunity to present
evidence, such as billing records, to support that the amount he
requested was reasonable.
In appeal styled 2000-CA-002328-MR, the Angels argue
that the circuit court abused its discretion by awarding
attorney’s fees to Maxie Higgason, the attorney for the
McKeehans.
The Angels cite Motorist Mutual Insurance Co. v.
Glass, Ky., 996 S.W.2d 437, 445 (1997) and Louisville Label, Inc.
v. Hildesheim, Ky., 843 S.W.2d 321 (1992) and argue that, absent
a statute, written agreement or case law to the contrary, a trial
court cannot award attorney’s fees to be paid by the adverse
party.
The Angels further contend that, even if the circuit
court has broad discretion in awarding attorney’s fees in an
estate action, Higgason was not entitled to attorney’s fees
because he represented the McKeehans’ interests, which were
adverse to the Angels’ interests.
According to the Angels,
Higgason did not undertake the representation of the McKeehans
for the benefit of all the parties involved.
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Higgason
represented the McKeehans for their sole and exclusive benefit
and to the detriment of the Angels.
The Angels agree that
Higgason earned his fees; however, they argue that his fees
should not come from the sales proceeds nor from the Angels.
We
agree.
No statute, case law or written agreement between the
parties authorized attorney’s fees to be awarded to Mr. Higgason.
Unlike Cox, Higgason did not represent the estate nor its coexecutors.
Since Higgason did not prosecute an action in the
circuit court for the benefit of all interested parties, he was
not entitled to seek his fees pursuant to KRS 412.070.
Further,
“[i]n all of the cases there collated no allowance of an
attorney’s fee was approved by this court unless the services
rendered by the attorney were necessary and redounded to the
benefit of the estate, either in accomplishing some purpose that
could be done only by litigation, or other resulting benefits to
be shared equally by it distributees.”
Gernert v. Liberty Nat.
Bank & Trust Co., 284 Ky. 575, 145 S.W.2d 522, 526 (1940).
Higgason did not render services that redounded to Thelma’s
estate nor did he render services that resulted in any benefits
that were shared equally by the Angels and the McKeehans.
Higgason professionally, competently and successfully rendered
services that benefitted his clients, the McKeehans, to the
detriment of the appellants, the Angels.
Since Higgason was not
entitled to attorney’s fees to be paid from the sales proceeds,
we find that the circuit court abused its discretion when it
awarded attorney’s fees to Higgason.
Therefore, we reverse and
vacate the circuit court’s order awarding such.
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For the foregoing reasons, we reverse the Whitley
Circuit Court and remand for further proceedings consistent with
this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Homer Parrent, III
Parrent & Vish
Louisville, Kentucky
W. M. Cox, Jr.
Williamsburg, Kentucky
Maxie E. Higgason, Jr.
Corbin, Kentucky
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