Bennett v. Lundell

MoGOMB, J.

This is an appeal from an order awarding the sum of $2,500 to Alberta Grace Burnett, the guardian of Allen Vincent Lundell, a minor, and the chief beneficiary of the estate of Wendell Phillip Lundell, as compensation for her attorneys for successfully contesting an allowance by way of extraordinary attorneys’ fees for the executors of the will of decedent.

Facts:

In December of 1948, the probate court made an award to the attorneys for the executors of the will of decedent in the sum of $12,000 for extraordinary fees. The attorneys for the guardian of the minor Lundell, who is the chief beneficiary of the will of decedent, objected to the petition for the award and to the award. After the order was made they appealed from the order allowing extraordinary attorneys’ fees and obtained a reversal of the order on appeal.

Thereafter the court fixed the amount of the extraordinary fees at $6,500, which order is now final. Respondent filed a petition in the probate proceedings for the costs expended in the sum of $197.67 in contesting the award for extraordinary attorneys’ fees and asked for the allowance of $2,500 for fees for her attorneys. Objections were made by the executors to the allowance of any attorneys’ fees or costs from the assets of the estate. The probate court, however, allowed respondent the amount requested.

Question: Where, after petition filed by the executors of a will for commissions for extraordinary services and for fees for extraordinary services rendered by their attorney, to which objections are made on behalf of the chief beneficiary under the will of decedent, and an appeal is successfully taken from an order allowing extraordinary fees to the attorney for the executors, may an award payable from the estate for attorney fees be made for the attorney for the beneficiary?

Yes.

The probate court may make an allowance of attorneys’ fees for services rendered to a party who successfully objects to charges against an estate in an executor’s account. Such allowance is predicated upon the equitable rule that fees for legal services rendered in preserving a common fund for the benefit of all heirs or persons interested in an estate are proper charges against such fund. Each beneficiary should

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