I find myself unable to agree with the majority and respectfully dissent.
This court is not confronted in this case with the question of the amount of the fees allowed, although the opinion starts by pointing out the portion of the estate the fees would take, later that it is a "large fee" and then by way of mere dictum that perhaps part of the work which is claimed was extraordinary should have been included in the statutory fee.
Now by way of dictum let me say, that an attorney like any other person is entitled to receive compensation for his services, and that the amount of the fee depends not only upon the time spent, but also upon the results accomplished, nature of the questions involved, and the standing of the attorney.
The question that confronts us is, did the court err in overruling the motion to set aside the order allowing the fees, and in sustaining the motion to strike the objections to the final report?
The opinion concedes, I quote:
"We are aware that there is a presumption supporting the regularity of the trial court's ruling in fixing these fees, which is sufficient to support it when not assailed and it is not uncommon for attorneys to proceed to obtain ex parte orders fixing their fees without introducing evidence as to the value of such services."
So we start with a presumption. How in this record is it overcome?
At the time the order allowing the fees was entered, there was on file a verified statement by the attorney, it covers several *Page 998 pages in the abstract. It sets out in detail the work done; that there was a will contest and the number of days involved in the preparation and the trial; that there was an appeal to the supreme court and the number of days consumed; the filing of a petition to sell the real estate; that this was resisted and a trial on same; again the time is set out; suit on a promissory note and securing judgment; the construction of the will; that again there was a trial and the time that the attorneys spent in the preparation and trial of same was set out. The court was advised of the fact that a period of 2 years elapsed from the probating of the will to the time that allowance was asked.
Six weeks after the order was entered a motion was filed, not supported by affidavits, but verified by the attorney. I quote from the appellant's motion the part they rely upon:
"That in the application for order fixing fees, the executor has set out vague and indefinite statements as to the services rendered in the conduct of the affairs within estate, and has failed to set out what extraordinary services he performed for the benefit of the estate for which he procured an ex parte order allowing his $750; that the said executor has failed to itemize the services and allege the reasonable value of the same; that the court was misinformed as to the character, extent and value of both ordinary and extraordinary services performed by the executor at the time it entered the order allowing the executor the sum of $1,308.50 as fees; that all the services performed by the executor in the conduct of the affairs of this estate are not worth the sum of $558.50 allowed him for performing services of ordinary character.
"That there was filed with the `Application for Order Fixing Fees of Executors and Attorneys' a pleading entitled, `Statement in relation to attorneys fees'; that said statement contains a list of ordinary services performed for the estate by A.H. Bolton and associates for the executor herein, and in addition contains a number of broad, indefinite and vague allegations which purport to set out the extraordinary services the executor's attorneys claim to have rendered said executor for the benefit of this estate; that said pleading contains various misstatements concerning the character of the services performed the time spent in performing them; that the court *Page 999 was misinformed as to the character, extent and value of the attorney's fees at the time it entered the order allowing attorney's fees in the sum of $3,500 for extraordinary services; that said fee is an unreasonable and an exorbitant fee for the services actually rendered * * *"
An analysis of these two sections shows that the allegations therein contained are the mere conclusions of the pleader.
The majority cite many cases. All of these are either cases in which a petition was filed to set aside the order, or the motion is supported by affidavits. It must be kept in mind that it is a motion and not a petition that confronts us and that motion was unsupported by affidavits.
While the majority do not agree with me, the appellant does for he concedes that a mere motion unsupported to set aside the allowance is valueless. I quote from appellant's reply brief:
"We agree that a mere motion to set aside an allowance of fees is valueless without some showing in support thereof. Such a showing is found in the motion itself which sets out a series of statements which in polite fashion states that a fraud was practiced on the Court."
In the case at bar there is no proof, the motion contains the unsupported conclusions of the pleader, not proof of the truth of the statements therein contained and there being no showing in support of the motion, in the words of the appellant — "It is valueless".
The exceptions to the final report are identical with the motion to vacate and the ruling on the motion to vacate the former order, in my judgment constitutes an adjudication. There must be some end to litigation and the appellants having raised the same question on the motion to vacate, and the ruling of the court on that motion must be considered as final, unless of course there was a showing of fraud which is not claimed in this case. I would affirm the lower court. *Page 1000