The opinion
Herman, J.
(dissenting) — I dissent. Appellant, the sole beneficiary of the will of H. V. Perry, deceased, was a stranger to the blood. She was the recipient of the testator’s bounty. This court, in passing on the question of attorneys’ fees, might well consider the
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rule it approved with reference to physicians’ compensation in the case of
Houda v. McDonald,
159 Wash. 561 , 294 Pac. 249 . There the court said:
“We are of the opinion that the rule best supported by reason, in any event as applicable to this case, is, that in some substantial measure the reasonable compensation of the physician is determinable by the ability of the patient or her husband to pay for the service; . . . ”
I am unable to agree with that part of the majority opinion which holds the allowance to the executor’s attorney unreasonable. The trial judge, before fixing the fee, had the benefit of hearing as witnesses two reputable members of the bar, with reference to whose ■ evidence he made the following comment:
“I do not impeach them in the least because I believe their testimony was honestly given and with no intent to deceive or represent things to the court in consideration of the fees, and these two attorneys suggested an amount in excess of the amount fixed upon, and one was much in excess of $5,000 as attorney fee.”
The trial judge had the advantage of being thoroughly familiar with the work involved, and was in a position to know the value of the services of the attorney for the executor. Not only did two reputable members of the bar testify that sums in excess of that allowed to the executor’s attorney were reasonable, but the record is wholly devoid of any testimony that the sum allowed by the trial court was excessive. I cannot subscribe to the majority opinion, which holds the trial judge was guilty of an abuse of discretion when he allowed an attorney’s fee of four thousand dollars for services rendered the executor.
The trial judge showed a true understanding of the situation with reference to compensation for lawyers’ services. In passing upon the question of what was a proper allowance for the executor’s attorney, he said:
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‘ ‘ When one takes into consideration that a lawyer after his academic schooling must devote a long period of time to the study of law, and during that time is deprived of earning capacity, and, upon the contrary, is to a great expense; when we further consider the. lean years which follow the entry into practice, the expense of accumulating a library and the constant demand upon the income of the beginner, all in expectation of a day of financial promotion — if I may use that term — we must realize that a lawyer must balance his accounts over his entire professional career, not as a merchant does — year by year. The tediously earned knowledge and experience added to lapse of time and cost of preparation constitutes an overhead which he has a right to spread over subsequent years. This means that he cannot be paid upon the basis of manual labor or of the papers he files and the arguments he makes. His trained knowledge, as I have pointed out, demands a larger compensation than that if we are to have a legal profession.”
Holcomb and Millard, JJ., concur with Herman, J.