HomeMy WebLinkAbout86-93 ORPHANS'1NRE:
ESTATE OF
F. ALBRIGHT SWARNER,
DECEASED, LATE OF THE
BOROUGH OF CARLISLE
1NRE:
ESTATE OF
F. ALBRIGHT SWARNER,
AN INCOMPETENT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 93 ORPHANS' 1986
ORPHANS' COURT DIVISION
IN RE: OBJECTIONS TO AUDITOR'S REPORT AND RECOMMENDATIONS
BEFORE GUIDO, J.
OPINION AND ORDER OF COURT
Procedural and Factual Background.
F. Albright Swarner was a hardy, hardworking farmer. He was active and in good
health until he was felled by a stroke in December of 1985. At the time he was stricken
he was 87 years old and had amassed a small fortune of a little over $2 million. Of that
amount, just under $300,000 was in cash, with the balance being real estate, mostly
farmland.
Prior to his illness, Mr. Swarner had little use for lawyers or banks. However,
when he did have need for one or the other, he used James Humer, Esquire, or Farmers
NO. 21-1986-93 ORPHANS' COURT DIVISION
Trust Company, respectively. ~ On several occasions over the years, his attorney, Mr.
Humer, and a trust officer at Farmers Trust, Dennis Caverly, had tried to get him to
consider an estate plan. He adamantly refused to do so. His expressed desire was to die
without a will.
Mr. Swarner was never married and he had no children. At the time of his illness,
his only intestate heir was his brother, Ralph Swarner. Ralph was married to Frances
Swarner and they had three children. One of those children, Doris Wickard, is the
objectant in these proceedings.
Shortly after his stroke, Mr. Swarner executed a durable power of attorney in
which he appointed Farmers Trust Company to handle his affairs. Pursuant to that power
of attorney, Farmers Trust arranged for him to enter a nursing home where he remained
until his death on March 19, 1994.
Approximately two months after his stroke, Doris Wickard used her own attorney,
William Kramer, Esquire, to prepare and file a petition to have her uncle declared
incompetent.2 One of her siblings joined in the petition. At the same time, Ms. Wickard
and her sibling filed another petition pursuant to Section 5536(b) of the Pennsylvania
Probate, Estates and Fiduciary Code3 in which they asked the Court to "substitute its
~ Mr. Humer was a long time local practitioner who was quite experienced in estate matters. Through
mergers and acquisitions Farmers Trust became Financial Trust Services, Keystone Financial and, finally,
M & T Bank. We will refer to it as Farmers Trust Company in this opinion.
: See Objectant's Hearing Exhibit 6.
~ 20 Pa. C.S.A. § 5536(b).
2
NO. 21-1986-93 ORPHANS' COURT DIVISION
judgment" for that of Mr. Swarner and authorize an estate plan on his behalf.4
A hearing on both petitions was held before the Honorable Kevin A. Hess on
March 13, 1986. Mr. Kramer appeared on behalf of Ms. Wickard and Mr. Humer on
behalf of Mr. Swarner.5 There was general agreement as to the need for the appointment
of a guardian.6 However, Mr. Humer opposed the estate plan. He presented testimony to
establish his client's refusal to do an estate plan and his penurious nature.7 The bank trust
officer, Mr. Caverly, also testified that, absent a gift giving program, there would be little
or no estate tax savings to Mr. Swarner's estate.8 At the conclusion of the hearing,
Judge Hess declared Mr. Swarner to be incompetent and appointed Farmers Trust
Company as guardian of his estate. He deferred ruling on the estate plan and entered the
following order:
Counsel in this case are given ten days within which to file briefs,
which should contain proposed findings with respect to the savings of
taxes and fees under estate plans proposed and discussed by the parties,
and should address the question of the authority of the court to name as
residuary beneficiaries of a trust persons who may not be intestate heirs of
the incompetent.9
Mr. Humer filed a brief on behalf of Mr. Swarner.~° Mr. Kramer did not file a
brief on behalf of Ms. Wickard. However, he did request the opportunity to present
4 The estate plan proposed by Ms. Wickard and her sister was to place Mr. Swarner's entire estate into an
irrevocable trust for his use and benefit for the remainder of his life. Upon his death, one half of the
principal and interest would go into trust for the benefit of brother Ralph and his wife. The other half was
to pass outright to Ms. Wickard and her siblings. Ms. Wickard and her siblings were also the residuary
beneficiaries of the trust established for their parents. See Objectant's Hearing Exhibit's 7 & 9.
s See Transcript of Proceedings of March 13, 1986. Objectant's Hearing Exhibit 12.
6]d.
7 Id. pp. 16-17.
8 Id. p. 34. Neither Ms. Wickard nor her counsel were proposing a gift giving program at that time.
Apparently, they were trying to avoid paying double inheritance tax by having Mr. Swarner's assets bypass
their father's estate. In point of fact, had the court granted her petition, a gift giving program would have
been impossible.
90bjectant's Hearing Exhibit 13.
lo Objectant's Hearing Exhibit 15. The brief attacked the petitioners' standing and pointed out Mr.
Swarner's refusal to make a will or to give any significant gifts prior to his incompetency.
NO. 21-1986-93 ORPHANS' COURT DIVISION
additional testimony and another hearing was scheduled for April 22, 1986.11 The
hearing was ultimately postponed at the request of Ms. Wickard's attorney, to be
rescheduled at the request of either counsel. 12
The April 22, 1986, hearing had been continued because the parties had reached a
compromise. On April 25, 1986, pursuant to that compromise, Mr. Swarner executed his
Last Will and Testament.13 The will accomplished Ms. Wickard's goal in that it placed
her parents' share into a bypass trust and gave the remainder of the assets to her and her
siblings. However, Mr. Swarner retained full title to all of his property and it passed to
his heirs only upon his death.
Over the next several years, Farmers Trust handled the affairs of Mr. Swarner.
During that period, the principal balance of his estate remained intact, the majority of his
real estate was liquidated and his income on investments exceeded his expenses by over
$400,000.TM The bank kept Mr. Swarner's family (brother Ralph and his wife as well as
Ms. Wickard and her siblings) apprised of relevant developments, including all sales of
real estate.
In November of 1992, Ms. Wickard obtained a new attorney who requested that
Farmers Trust institute a gift giving program on behalf of Mr. Swarner. 15 Farmers Trust
petitioned the Court to authorize such a program under Section 5536(b) of the Probate
Estates and Fiduciaries Code. In December of 1992, with all parties in interest being in
~ See Order of Judge Kevin A. Hess, dated March 31, 1986.
~: See April 21, 1986, Order of Judge Kevin A. Hess.
~ Objectant's Hearing Exhibit 16. Although no court approval was sought before the will was executed,
nobody objected to its being probated.
~40bjectant's Hearing Exhibit 42. The largest cash influx came in December of 1986 when one of his
farms was sold for almost $1.7 million.
~5 Mr. Kramer had left the practice of law sometime after April of 1986.
4
NO. 21-1986-93 ORPHANS' COURT DIVISION
agreement, the Court approved gifts totaling $640,000.~6 Ms. Wickard and her siblings
received $110,000 each, and an additional $310,000 was put into a trust for their
mother. ~7 Pursuant to the petition and order, additional gifts of $10,000 were made to
each of those beneficiaries in 1993 and 1994.
On March 26, 1993, Farmers Trust filed a First and Partial Account for the Estate
ofF. Albright Swarner, an incompetent.~8 The account was stated from December 11,
1985 through March 13, 1993. Notice of the account was given to Ms. Wickard, her
siblings, and her mother. The account included commissions and fees to Farmer's Trust
in the amount of $65,775.24.~9 No objections were filed and the account was confirmed
absolutely by Order of Court dated April 27, 1993.
Mr. Swarner died on March 19, 1994. His will of April 25, 1986 was probated
without objection and letters testamentary were issued to Farmers Trust Company.
On May 20, 1994, Farmers Trust filed a Second and Final Account for the Estate
ofF. Albright Swarner, an incompetent. The account showed additional fees of
$12,618.47 to the bank. Ms. Wickard filed objections to that account. The crux of the
objections dealt with the failure of Farmers Trust to start the gifting program sooner. Ms.
Wickard argued that the bank should be surcharged for hundreds of thousands of dollars
in estate taxes incurred upon Mr. Swarner's death. She also claimed that the fees charged
by the bank as guardian were inflated because of the failure to commence the gift giving
program in 1986.
16 The gift giving program was approved on petition without a hearing. There was no guardian ad litem
appointed to represent Mr. Swamer's interests.
~7 This was in accord with the provisions of the "compromise will" of April 25, 1986. Mr. Swarner's
brother Ralph had died in 1990. The children were the residuary beneficiaries of the trust created for their
mother.
~80bjectant's Hearing Exhibit 42.
NO. 21-1986-93 ORPHANS' COURT DIVISION
An auditor was appointed to handle the objections. However, due to the nature of
the objections, his appointment was extended and hearing in the matter was continued to
allow for the completion of the administration of the decedent's estate.
On July 26, 1996, Farmer's Trust filed a First and Final Account and Schedule of
Proposed Distribution in connection with the Estate ofF. Albright Swarner, deceased.
Ms. Wickard filed similar objections to this accounting.2° The same auditor was
appointed to deal with these objections.
The parties conducted extensive pre-hearing discovery. They eventually advised
the auditor that they were ready to proceed to a hearing which was held on August 8,
2000. The auditor's recommendations may be summarized as follows:
(1 .)
Farmers Trust Company should not be surcharged for additional
estate taxes incurred as a result of its failure to implement a gift
giving program prior to 1992.
(2.)
The compensation paid to Farmers Trust as Guardian of the Estate of
F. Albright Swarner, an incompetent, should be reduced from
$78,393.71 to $5000 because of its mismanagement in failing to
commence a gift giving program prior to 1992.
(3 .)
The compensation payable to Farmer's Trust as Executor of the
Estate ofF. Albright Swarner, deceased, should be reduced from
$29,763.64 to $5000 because of its mismanagement in failing to
commence a gift giving program prior to 1992.
(4.)
The compensation payable to William Daniels, Esquire, for serving as
attorney for the Estate ofF. Albright Swarner, deceased, should be
reduced from $29,763.64 to $7,500.
(5.)
Ms. Wickard's legal fees should be reimbursed from the estate in the
amount of $25,602.02. This represents the fair and reasonable value
of the fees she incurred in connection with the implementation of the
gift giving program and in prosecuting the objections to the
accountings. All other fees and expenses in excess of this amount,
including expert witness fees, should be borne by Ms. Wickard.
She also challenged the fees charged by the attorney who aided in the administration of the estate.
NO. 21-1986-93 ORPHANS' COURT DIVISION
(6.) Farmers Trust Company should bear all fees charged by its attorneys
and expert witnesses in defending the objections to its accountings.
Both parties have filed objections. Except for the reduction in Mr. Daniels' fee, all
of the above recommendations have been challenged by one party or the other.2~ We will
discuss each of the challenged recommendations in the opinion that follows.
DISCUSSION
Surcharge of Farmer's Trust.
A surcharge is the penalty imposed upon a fiduciary for failure "to
exercise common prudence, skill and caution in the performance of its fiduciary duties".
Trust of Munro v. Commonwealth National Bank, 373 Pa. Super. 448, 452 541 A.2d 756,
758, (1988). A fiduciary who holds itself out as having greater skill and knowledge than
that of a man of ordinary prudence will be judged to the standard of one having such
special skill and knowledge. In Re: Estate of Killey, 457 Pa. 474, 326 A.2d 372, (1974).
In general, one who seeks to surcharge a fiduciary has the burden of proving that the
fiduciary breached a duty and that a loss occurred as a result. In Re: Estate of Stetson,
463 Pa. 64, 345 A.2d 679, (1975).
It is uncontroverted that the estate would have saved significant estate taxes if a
gifting program had been implemented in 1986 rather than 1992.22 Ms. Wickard strongly
urges that we impose a surcharge on the bank for those excessive taxes. Because we find
that the bank was under no duty to implement a gift giving program, we find that the
auditor correctly refused to impose such a surcharge.
2~ Various errors were alleged in the findings of fact and conclusions of law upon which the
recommendations were based.
22 Experts for both sides calculate that federal and state inheritance taxes could have been reduced between
$400,000 and $600,000.
NO. 21-1986-93 ORPHANS' COURT DIVISION
The duties of a guardian for an incompetent differ significantly from those of any
other fiduciary under our law. The incompetent "is the ward of the Court itself, and the
guardian is simply the bailiff or agent of the Court in protecting the ward and his estate."
In re: Sigel, 372 Pa. 527, 94 A.2d 761,763 (1953). "It is always to be borne in mind that
the estate is the estate of the (incompetent)". Com. ex rel. Flowers v. Flowers, 326 Pa.
138, 139, 191 A. 914, 915 (1937). Therefore, the guardian's primary, if not sole duty, is
to the court and its ward, not to his intestate heirs or testamentary beneficiaries.
As any fiduciary, the guardian must exercise prudence, skill and caution in the
performance of its fiduciary duties commensurate with its level of skill and knowledge.
Estate of Killey, supra. However, counsel has not pointed out, nor were we able to find,
any authority for the proposition that the guardian is under a duty to give away the ward's
assets in order to minimize the taxes his eventual beneficiaries will have to pay.
Admittedly, Section 5536(b) authorizes the Court to take steps, including gift giving
under certain circumstances, to minimize estate taxes.23 However, giving the Court the
authority to act is not synonymous with requiring its agent to do so.
2~ 20 Pa. C.S.A. § 5536(b) provides in relevant part as follows:
(b) Estate plan.-The court, upon petition and with notice to all parties in interest and for good
cause shown, shall have the power to substitute its judgment for that of the incapacitated person with
respect to the estate and affairs of the incapacitated person for the benefit of the incapacitated person, his
family, members of his household, his friends and charities in which he was interested. This power shall
include, but is not limited to, the power to:
(1) Make gifts, outright or in trust.
ooo
In the exercise of its judgment for that of the incapacitated person, the court, first being satisfied that assets
exist which are not required for the maintenance, support and wellbeing of the incapacitated person, may
adopt a plan of gifts which results in minimizing current or prospective taxes, or which carries out a
lifetime giving pattern. The court in exercising its judgment shall consider the testamentary and inter vivos
intentions of the incapacitated person insofar as they can be ascertained.
NO. 21-1986-93 ORPHANS' COURT DIVISION
Ms. Wickard points to an advertising pamphlet in which Farmers Trust held itself
out as an expert in planning the farm estate as support for her position that a surcharge is
warranted. However, this Court did not appoint Farmer's Trust to formulate an estate
plan for Mr. Swarner. It was appointed to handle his assets, which, by all accounts, it did
very well. If it had dissipated Mr. Swarner's estate through mismanagement, a surcharge
would certainly be appropriate. The fact that Ms. Wickard and her siblings had to pay
additional inheritance taxes because of the bank's competent management of those assets
does not justify a surcharge.
Even if Section 5536(b) could be interpreted as imposing a duty upon the
guardian to act, the imposition of a surcharge upon Farmers Trust in this case would not
be appropriate. It is far from clear that the Court would have acted favorably on a
petition to implement a gift giving program in 1986. While Section 5536(b) allows the
Court to "substitute its judgment for that of the incapacitated person", it also requires that
the Court "in exercising its judgment shall consider the testamentary and inter vivos
intentions of the incapacitated person insofar as they can be ascertained.''24 The
record in this case makes it abundantly clear that Mr. Swarner had no intention of parting
with his money during his lifetime. He was given ample opportunity to plan his estate so
that his heirs could avoid substantial inheritance taxes. Yet, he adamantly refused to do
so. Had he remained competent, we are convinced that he would have died without a will
and without ever having made any substantial gifts. We are also convinced that his long
24 The Pennsylvania Probate, Estates and Fiduciary Code was amended in 1992 to substitute "incapacity"
for "incompetency" and "incapacitated person" for "incompetent" throughout. There were no other
amendments which are relevant to this decision.
NO. 21-1986-93 ORPHANS' COURT DIVISION
time lawyer, James Humer, Esquire, was prepared to fight any attempt to give away his
client' s money.
Rather than bring the matter to a head in 1986, objectant agreed to a compromise
in which Mr. Swarner executed a will. This was a valid compromise in that it achieved
the goals of all parties. It allowed Mr. Swarner to retain title to and control of his
assets,26 while at the same time saving objectant and her siblings substantial inheritance
taxes by, in effect, bypassing their father's estate.27
By 1992 several things had changed. Ms. Wickard had obtained new counsel.
Mr. Caverly, the trust officer, was no longer actively involved with Mr. Swarner's
account. Perhaps most noteworthy, Mr. Humer had died.
Taking advantage of the changed circumstances, Ms. Wickard and her new
counsel persuaded the bank to ask the Court to exercise its powers under Section 5536(b)
:s See Objectant's Hearing Exhibit 15. (the brief filed by Mr. Humer and the accompanying letter to Mr.
Kramer). Furthermore, in discussing the reasons the bank did not propose a gifting plan in 1986, the trust
officer, Mr. Caverly, had explained:
Q. So that it was not an inappropriate idea to make these gifts, it could reduce the taxes down?
A. In my mind, it was sort of an inappropriate idea. And the reason I say that is having spoken
with Albright about his money, Albright was pretty tight. And he was not the kind of guy
who was going to be giving $10,000 away to people. I mean, he just - - that wasn't in his
makeup.
ooo
Mr. Hnmer felt quite strongly, I tended to agree personally with him, he felt quite strongly that
Albright Swarner did not want to write a will. He refused to do it, did not want to do any kind of
estate planning. He was going to let the estate - - intestate act, I'm sorry - -
Q. Intestacy laws.
A. Right. - - take care of the thing and that it was sort of arrogant and high-handed for the
family to take this opportunity to do something that Mr. Swarner, on his own, wouldn't
do. I think my position was that's true, and I'm sympathetic to it, too. But it wouldn't hurt
Mr. Swarner if we did this compromise thing.
See Caverly Deposition Testimony pp. 22-24, as contained in Objectant's Hearing Exhibits 92-94.
(emphasis added).
:6 While the Court had control of Mr. Swarner's assets, they would still be there for him if he ever regained
his faculties.
:7 Mr. Swarner's avowed intention to die intestate would have resulted in his entire estate passing to
objectant's father. Substantial estate taxes would have been due both on the death of Mr. Swarner and also
on the death of her father. Of course, in 1986 there was no way of knowing that objectant's father would
predecease Mr. Swarner.
10
NO. 21-1986-93 ORPHANS' COURT DIVISION
and to allow substantial gifts to be made to her family. Without the appointment of a
guardian ad litem for Mr. Swarner, the petition, which was joined in by Ms. Wickard, her
mother and siblings, asked the Court to allow $640,000 in gifts to be made from his
estate. The petition alleged, inter alia, as follows:
"... if F. Albright Swarner were competent at this time, he would himself
be willing to make a present distribution of assets in the sums proposed to
or for the benefit of those beneficiaries.''28
While the attorney and trust officer then handling Mr. Swarner's affairs may have
believed that statement to be true, we are satisfied that Ms. Wickard and her siblings
could not and did not.
It would be patently unfair to surcharge the bank under the facts of this case.
While the auditor concludes that Farmers Trust was "asleep at the switch" prior to 1992,
we are satisfied that it was not. It was, in fact, attempting to abide by the expressed
wishes of the incompetent. The serendipitous circumstances of their uncle's stroke, Mr.
Caverly's reassignment and Mr. Humer's death allowed Ms. Wickard and her siblings to
avoid substantial amounts in inheritance taxes. Ms. Wickard now wants to augment their
inheritance by having the bank pay the bulk of the remaining estate taxes. Under the
circumstances present in this case, such a result would be clearly inappropriate.29
Fees of Farmers Trust.
The auditor concluded as a matter of law that the compensation claimed by
Farmers Trust Company as guardian and as executor "are clearly excessive in light of the
failure.., to even consider petitioning the court to implement a gifting program prior to
:8 See Objectant's Hearing Exhibit 36, paragraph 9.
29 We note again that the terms of the irrevocable trust proposed by Ms. Wickard in 1986 did not authorize
gift giving.
11
NO. 21-1986-93 ORPHANS' COURT DIVISION
1992.''3° He went on to recommend that the guardian fees claimed by Farmers be
reduced from $78,393.71 to $5000 and that its executor fees be reduced from $29,763.64
to $5000. We disagree with the auditor for several reasons.
In the first instance, as noted above, Farmers Trust was not appointed by the court
to plan Mr. Swarner's estate. It was appointed to look after and manage his assets, which
it did quite well. It liquidated millions of dollars worth of real estate and managed the
assets in such a manner that all of Mr. Swarner's needs were met from current income,
with hundreds of thousands of dollars left to be transferred to principal. The guardian's
primary duty was to the ward and to the management of his estate for his benefit. It
performed this function admirably.
Furthermore, the auditor erred when he found that the bank did not consider a gift
giving program prior to 1992. Clearly, Mr. Caverly considered the matter and rejected it
as against the avowed wishes of his ward. Under these circumstances, it would not be
appropriate to reduce the bank's fee for neglect and mismanagement.
Even if a reduction in fees were appropriate because of the bank's failure to give
away its wards assets, objectant has waived the issue with regard to any fees listed on the
First and Partial Account of Farmers Trust Company, Guardian for the Estate ofF.
Albright Swarner, an incompetent. That account was confirmed absolutely, without
objection, on April 27, 1993. Ms. Wickard and her siblings were given notice and the
opportunity to object.3~ They did not do so.
~0 Auditor's Report, "Conclusions of Law", para. 1.
~ See 20 Pa. C.S.A. § 3503, incorporated under provisions governing guardians at 20 Pa. C.S.A. § 5533(1),
and 20 Pa. C.S.A. § 3514 incorporated under the provisions governing guardians at 20 Pa. C.S.A. § 5533 (6).
12
NO. 21-1986-93 ORPHANS' COURT DIVISION
Since the account was stated through March 12, 1993, any claims against the
accountant for conduct prior to that time are barred. In re: Estate of Lare, 436 Pa. 1, 9,
257 A.2d 556, 561 (1969) and In re: Estate of Braun, 437 Pa. Super. 372, 377, 650 A.2d
73, 76 (1994). The failure to appeal the final order confirming the First and Partial
Account renders the doctrine of res judicata applicable. In re: Estate of Litostansky,_499
Pa. 321,453 A.2d 329 (1982).
The auditor concluded as a matter of law that Farmers Trust is estopped from
raising the defense of waiver.32 He reasons that since the bank took the position that Ms.
Wickard had no standing with regard to the estate during Mr. Swarner's lifetime, it
cannot now raise her failure to object as a defense. We disagree for several reasons.
First, it was Mr. Humer, as attorney for the incompetent, not the bank, who raised the
lack of standing issue. Furthermore, the issue was raised only once, that being in the
brief requested by Judge Hess. In any event, once the "compromise will" was executed,
the reason for the lack of standing was removed. Thereafter, the bank clearly recognized
the standing of Ms. Wickard and her siblings. They were asked to consent to the gift
giving petition, which they did in writing. They were given notice of the sale of all real
estate, and most importantly, notice of the First and Partial Account.33
We are mindful that the burden is still upon the bank to show that its claimed fees
are reasonable. In re: Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d 306 (1996). We
32 Auditor's Report "Conclusions of Law ", para 8.
33 The bank argues that the waiver defense applies to the surcharge issue as well. We disagree. Since Mr.
Swarner was still alive at the time the First and Partial Account was filed, it was impossible to determine
the nature and extent of any additional inheritance tax liability his estate would incur. Therefore, the issue
was not ripe for adjudication at that time.
13
NO. 21-1986-93 ORPHANS' COURT DIVISION
are satisfied that it met its burden in the instant case. One need only look at the accounts
filed, as both guardian and executor, to appreciate the nature and extent of the services
the bank performed. As guardian, it liquidated the ward's real estate and generated
substantial income through the management of his assets. Fees of approximately $11,000
per year for those services are certainly reasonable.34 As executor it charged a fee that
was actually less than it could have charged under its published fee schedule.35 The fee
schedule provided for a fee of $29,500 on estates of $1 million plus a 6% commission on
income generated during the settlement period. The decedent's estate was well over $2
million. Therefore, the claimed fee of $29,763.64 was certainly reasonable in light of the
bank's customary fees.
Objectant's Counsel Fees.
The auditor concludes as a matter of law that counsel fees in the amount of
$25,602.02 should be paid to objectant's attorney from estate funds.36 Of that amount,
$5,602.02 represents fees incurred in persuading the bank to start the gift giving program
in 1992. The remaining amount represents fees incurred in the prosecution of her
objections to the various accounts. For the reasons hereinafter set forth, we are satisfied
that objectant should bear her own counsel fees and expenses.
34 In addition, for the reasons set forth above, Ms. Wickard has waived her right to object to any portions of
the bank's fees appearing in the First and Partial Account which was confirmed absolutely without
objection on April 27, 1993.
3s See Objectant's Hearing Exhibit 2.
36 Auditor's Report, "Conclusions of Law ", para. 5, 7.
14
NO. 21-1986-93 ORPHANS' COURT DIVISION
While there are circumstances in estate litigation where the court may properly
award counsel fees, the general rule is that the objectant must pay his or her own fees. As
our Supreme Court has stated:
It is only in very exceptional cases that an exceptant to the account of an
executor, administrator or trustee in the Orphans' Court will be allowed
counsel fees out of the fund. The rule in such cases is that the exceptant
must pay his own counsel fee.
Where the fund is in the hands of the court and in no jeopardy, except
from the possible mistake of the court in dealing with it, and an exceptant
is merely protecting his own interest, he will not be allowed counsel fees,
although through his efforts others may also be benefited.
In re: Estate of Sowers, 383 Pa. 566, 572-73, 119 A.2d 60, 64 (1956).
The Pennsylvania Supreme Court reaffirmed the Estate of Sowers principle in In
re: Estate of Tose, 482 Pa. 212, 393 A.2d 629 (1978). It recognized that the award of
attorney fees may be appropriate where a litigant creates "a fund for distribution or
administration by the court." 482 Pa. at 223. However, it went on to note that "(t)hose
few cases which have allowed counsel fees under this theory involve situations where
due to one litigant's efforts a fund was brought before a court or a fund already before the
court was augmented by new assets." Id.
The case at bar falls squarely within the rule set forth in the Estate of Sowers,
supra. The actions of Ms. Wickard brought no new assets into the estate. In point of fact,
the gift giving program, while eventually saving estate taxes, actually depleted the estate
assets at the time it was implemented. In any event, Ms. Wickard's actions can fairly be
categorized as "merely protecting (her) own interest". Therefore, counsel fees will not be
allowed.
15
NO. 21-1986-93 ORPHANS' COURT DIVISION
Fees of Farmers Trust's Attorney.
We have denied objectant's request to surcharge the bank. "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.., against the attack." In re: Estate of Browarsky, 437 Pa.
282, 285, 263 A.2d 365, 366 (1970) (citations omitted). Therefore, all attorney fees
incurred for the services ofMartson, Deardorff, Williams, and Otto should be borne by
the estate. Likewise, the fees of the expert witnesses retained by the bank in defending
against the objections should also be borne by the estate.
DECREE NISI
AND NOW, this 14TM day of SEPTEMBER, 2001, for the reasons set forth in the
foregoing opinion, it is hereby ordered and decreed as follows:
(1.) The fees of William Daniels, Esquire, attorney for the Estate ofF. Albright
Swarner, deceased shall be reduced from $29,763.64 to $7500.
(2.) Objectant, Doris Wickard, shall be responsible for her own counsel fees and
expenses.
(3.) The Estate ofF. Albright Swarner, deceased shall pay attorney fees and costs
in the amount of $50,248.50 to Martson, Deardorff, Williams, and Otto for
defending the Executor and/or Guardian against objections filed to the
various accounts.
16
NO. 21-1986-93 ORPHANS' COURT DIVISION
(4.) The Estate ofF. Albright Swarner, deceased shall pay the reasonable cost of
all expert witness fees incurred by the Executor and/or Guardian in defending
against objections filed to the various accounts.
(5.) The costs of the Auditor's proceedings shall be borne by the Estate ofF.
Albright Swarner, deceased.
In all other respects, the accounts at issue in these proceedings shall be
confirmed as stated by the Guardian or Executor, respectively, and any objections or
exceptions thereto are dismissed.
By the Court,
William Daniels, Esquire
Richard W. Stewart, Esquire
lvo V. Otto, lll, Esquire
Robert C. Spitzer, Esquire
/s/Edward E. Guido
Edward E. Guido, J.
:sld
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