In Re Estate of Higgins

ANGELLOTTI, J.

This is an appeal from an order made on the application of certain attorneys under section 1616 of the Code of Civil Procedure fixing the sum of two thousand dollars as their compensation for extraordinary legal services in resisting a contest before probate of the will of deceased, and directing the payment of the same by the executor of the will from the moneys in his” hands belonging to the estate.

The deceased left an estate consisting entirely of community property. He left surviving him his wife, Phoebe B. Higgins, a daughter, Cornelia B. Chick, and two sons, Albert E. Hig

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gins and Herbert R. Higgins. By the terms of his will he purported to give „to his wife her one half of said community property, and divided the other one half as follows: One sixth to said Cornelia, two sixths to said Albert and three sixths to said Herbert. The effect of the will was therefore simply to take from Cornelia one half of the share to which she would have succeeded as an heir if deceased had died intestate and to give the same to Herbert. Herbert was named in said will as the executor thereof. He offered the will for probate. Objections to its admission to probate on the grounds of undue influence and incompetency were presented by Cornelia and Albert, and these objections were answered and contested by Herbert and the widow. The petitioning attorneys were employed by the proponent, Herbert, to represent him in said contest, and it is for the services rendered under such employment that compensation from the estate was allowed by the order appealed from. The proponent prevailed upon the contest, and the will was admitted to probate. The application of the attorneys for payment for their services from the funds of the estate was opposed by Cornelia and Albert, and the appeal from the order making such allowance is by them.

As was substantially said in

Estate of Hite,

155 Cal. 448, 452, [101 Pac. 448], an attorney can obtain by an application for fees for legal services made under section 1616 of the Code of Civil Procedure only such sums as are properly allowable to the executor or administrator as necessary expenses in the discharge of his duties. The question, therefore, is whether the trial court would have been warranted in concluding that the executor was entitled to recover from the estate the fee that he had paid or for which he had become liable to the attorneys employed by him to resist the contest of the will for the services rendered by them under such employment. In view of the provisions of section 1619 of the Code of Civil Procedure, to warrant an allowance for attorney fees for litigation of the executor or administrator, the litigation must have been such as was “necessary for the executor or administrator to prosecute or defend.” In