Hollister v. Hollister

FOX, P. J.

This action was originally commenced by the plaintiffs, who are beneficiaries under the Jeanie H. Hale

inter vivos

trust of June 5, 1932, to remove defendant, also a beneficiary under said trust, from the office of trustee. Defendant employed the firm of Sehauer, Ryon & McIntyre to represent him in this case, which came on for trial on November 9, 1960. It became obvious to all parties that defendant, who was a man 90 years of age and who has since passed away, was unable to withstand the strain of a trial. As a consequence, the parties entered into a settlement which resulted in defendant’s resigning as trustee; his nomination, subject to court approval, of Atwell Westwiek as his successor trustee; the entry of a stipulated judgment

1

dated November 28, 1960, approving,

inter

alia, the resignation of defendant as trustee of said trust, and the approval of Westwiek as successor trustee.

2

As a part of these proceedings plaintiffs withdrew certain allegations in their pleadings wherein they charged defendant with mismanagement of the trust property, and that, by reason of his advanced age, he was unable to discharge the responsibilities involved.

3

On February 1, 1961, Westwick filed his petition for approval of his resignation as trustee of said estate, his final

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accounting as such trustee, his request for allowance of attorneys’ fees, nominated Joe D. Paxton as his successor trustee, and requested approval of said nomination. West-wick had employed the firm of Schauer, Ryon and McIntyre as his attorneys to prepare and present this petition. Plaintiffs objected to the portion of the petition which sought an allowance of attorneys’ fees for its preparation and presentation by Schauer, Ryon & McIntyre. Defendant, who had a 4/7ths life beneficial interest in the trust, filed his consent to the granting of the petition. Following argument, the court granted Westwick’s petition in all respects except that it denied any allowance of attorneys’ fees for preparation and presentation of his petition and accounting and for other services. Westwick has appealed from the portion of the order disallowing his application for counsel fees.