Estate of Arnold

The deceased, Della S. Arnold, died on August 25, 1930, and on the same day her brother found in a drawer of deceased's desk a will she had made in 1926, with the last page, which had borne her signature, missing. A carbon copy of the will was found in her safe deposit box and there was also a copy thereof on file with the Citizens National Trust Savings Bank of Los Angeles, which was named in the will as executor. This bank petitioned the superior court for probate of the will on the theory that the original was merely a missing instrument. A trial of the contest resulted in the court refusing to admit the will to probate, and letters of administration were issued to the First Trust Savings Bank of Pasadena. A few weeks later the Citizens National Trust Savings Bank, respondent herein, petitioned the court for allowance to it of $91.75 for costs and disbursements and $1,000 for attorney's fees incurred by it in the proceedings whereby it was sought to admit the alleged last will to probate. After hearing the issues raised by the answer to the petition the court made an order allowing to respondent out of the funds of the estate the sum of $70 for costs and disbursements and $500 for attorneys' fees. The executor appealed from this order, appellant, however, conceding the propriety of the allowance of the $70 item of costs.

[1] This appeal directly presents the question as to whether an unsuccessful proponent of a will who has been therein nominated as the executor, admission to probate having been denied because of evidence whereby the court found that the will had been revoked by the testator, may be allowed to recover attorney's fees incurred in proposing the will and the contest which ensued. Respondent relies *Page 249 upon section 1720 of the Code of Civil Procedure, which provides that "When it is not otherwise prescribed in this title, the superior court, or the supreme court on appeal, may in its discretion order costs [italics ours] to be paid by any party to the proceeding, or out of the estate, as justice may require," as giving authority to the court to make such an allowance. Appellant contends that the word "costs" in the section does not include attorney's fees.

In the almost parallel case of Estate of Olmstead, 120 Cal. 447 [52 P. 804, 806], a will was refused admission to probate because of its revocation, and the court allowed to proponents their costs, in the sum of $70.50, and $500 for attorneys' fees incurred in the endeavor to probate the will, to be paid in the due course of administration. Except for the addition of the last sentence, which does not affect the question under discussion, section 1720 of the Code of Civil Procedure as it existed at the time of the proceedings in the case at bar is identical with the language of that enactment at the time of the decision in the Olmstead case. After calling attention to the fact that section1720 is the only provision under which an order such as that before the court for review might, if at all, be authorized, the court held that the item of $70.50 for costs was properly allowed, but ruled that "attorneys' fees are not in any proper sense a part of the costs in a case. . . . The legislature has in certain enumerated cases provided for the recovery of attorneys' fees. Had it intended that they should be recovered in instances like the present, we may reasonably infer the statute would have so declared. . . . We are of the opinion that counsel fees are not allowable under section 1720 of the Code of Civil Procedure." (See, also, note, 10 A.L.R. 795.)