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Matter of Page (Coudert) 2011 NY Slip Op 30109(U) January 18, 2011 Sur Ct, Nassau County Docket Number: 26922 Judge: Edward W. McCarty Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------------x In the Matter of the Judicial Settlement of the Final Account of Proceedings of Kenneth R. Page, as trustee and as executor of the estate of Frederic R. Coudert, III, deceased trustee, and Emilio A. Dominianni, as trustee, of the "Second Share" Trust under Article NINTH of the Last Will and Testament of PAULA MURRAY COUDERT, Deceased. -------------------------------------------------------------------------------x

File No. 239417 Dec. No. 26922

In this uncontested accounting proceeding, the only issues before the court are attorneys' fees, the fee of the guardian ad litem, commissions and the settlement of the account. This is a proceeding by Kenneth R. Page and Emilio A. Dominianni to settle their account as trustees of the "Second Share" trust under Article NINTH of the will of Paula Murray Coudert. The account covers the period March 31, 1986 through December 31, 2008. The trustees also filed a supplemental account covering the period January 1, 2009 through September 30, 2010. This is the trustees' first and final account. The summary statement shows principal charges to the accounting party of $25,950,272.00. A guardian ad litem was appointed to represent the interests of the minor grandchildren of Frederic R. Coudert, III, Hailey Marie Coudert Morris, Caroline Coudert Morris and Bennett Coudert Morris. The decedent, Paula Murray Coudert, died on September 28, 1985, a resident of Nassau County, leaving a will dated September 13, 1984, which was admitted to probate by decree of this court dated November 12, 1985. In Article NINTH of her will, the decedent directed that her residuary estate be divided into two equal shares, and she directed that the second such share be held in trust for the primary benefit of her son, Frederic R. Coudert, III, and his issue. Pursuant

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to the terms of the trust, during Frederic's lifetime, the trustees had the discretion to pay the net income to any one or more of Frederic and his issue. The trustees also had the discretion to distribute to the same class of persons such amount from principal as they deemed "wise and proper to provide for ... comfort, support, maintenance, education or general welfare." The will provides that the trust shall terminate upon Frederic's death. In addition, the decedent's will gives Frederic a limited testamentary power of appointment over the remainder of the trust which he may exercise in favor of any of his lawful issue or lawful issue of the decedent. In Article FOURTEENTH of her will, the decedent named Paula C. Rand, Eugene D. Wadsworth and Emilio A. Dominianni as trustees of the trust for Frederic and authorized each to name his or her successor. Eugene Wadsworth renounced his nomination to act as trustee. Letters of trusteeship issued to Paula C. Rand and Emilio A. Dominianni on November 12, 1985. Eugene Wadsworth designated Robert N. Hornick to act in his place. Paula C. Rand designated Frederic R. Coudert, III to act as successor trustee in her place, and she resigned, effective upon Frederic's appointment. On July 23, 1986, this court issued letters of successor trusteeship to Robert N. Hornick, Frederic R. Coudert, III and Emilio A. Dominianni. Robert N. Hornick then designated Andrew S. Hedden to act as his successor and resigned effective upon Andrew S. Hedden's appointment. Thereafter, Andrew S. Hedden designated Kenneth R. Page to act as his successor. By order dated April 13, 2007, letters of trusteeship issued to Kenneth R. Page to act as successor co-trustee. The surviving trustees of the trust are petitioners Kenneth R. Page and Emilio A. Dominianni. Frederic died on December 5, 2008, leaving a will dated May 1, 2008, which was admitted to probate by decree of this court dated May 22, 2009. Letters testamentary issued to 2

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Kenneth R. Page. In his will, Frederic exercised his power of appointment and appointed all of the property of the trust to the Frederic R. Coudert III Appointive Trust, created under an agreement dated January 30, 2007, between Frederic, as grantor, and Kenneth R. Page, as trustee. By election dated December 30, 2002, the then acting trustees, with the consent of Frederic and his daughters, who constituted all of the permissible income beneficiaries, opted to convert the trust to a unitrust under EPTL 11-2.4, effective as of January 1, 2003. The guardian ad litem has submitted his report. He recommends approval of the account. In addition, the guardian ad litem states that he believes a fee of $90,000.00 for the trustees' counsel is reasonable in view of the size of the trust, the length of the period accounted for, the standing of counsel and the issues and responsibilities involved. With respect to the issue of attorneys' fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate (Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Phelan, 173 AD2d 621, 622 [2d Dept 1991]). While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]). In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the 3

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services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts (123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]), and as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]; Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]). A sizeable estate permits adequate compensation, but nothing beyond that (Martin v Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]; Matter of Reede, NYLJ, Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County]). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided. The burden with respect to establishing the reasonable value of legal services performed 4

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rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; see e.g. Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]; Matter of Phelan, 173 AD2d 621 [2d Dept 1991]). These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Burk, 6 AD2d 429 [1st Dept 1958]; Matter of Berkman, 93 Misc2d 423 [Sur Ct, Bronx County 1978]; Matter of Reisman, NYLJ, May 18, 2000, at 34 [Sur Ct, Nassau County]). Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]). With respect to disbursements, the tradition in Surrogate's Court practice is that the attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, and other items of the same nature (Matter of Graham, 238 AD2d 682 [3d Dept 1997]; Matter of Diamond, 219 AD2d 717 [2d Dept 1995]; Warren's Heaton on Surrogate's Court Practice

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