McCormick v. Silva

STURTEVANT, J. This is an appeal from an order made by the probate court refusing to allow compensation to the executrix and her attorneys for services rendered in defending a will contest before the will had been admitted to probate.

Joseph A. Silva died on January 13, 1937. At the time of his death he was about eighty-seven years of age. The record does not disclose whether he was ever married. There are recitals to the effect that his only heirs at the time of his death were brothers and sisters and no others. He had accumulated and was the owner of both real and personal property located in Santa Clara County, the county in which he died. On the 15th day of March, 1934, he executed a deed to Gladys E. McCormick conveying to her a house and lot located at 430 North Fifth Street in San Jose, and on April 11, 1934, he executed a deed conveying to her his home place also located in San Jose, and on March 15, 1934, he executed and delivered to her a note and trust deed recorded in liber 662 of official records of Santa Clara County at page 554. On the 25th day of December, 1936, he executed a will. In the third paragraph he gave to Gladys E. McCormick each of the properties theretofore conveyed to her and expressly ratified and confirmed said conveyances. In the fourth paragraph he gave and divided all of the rest of his property in equal shares to those of his brothers and sisters that might survive him. No other bequest whatever was made. The decedent declared in his will that he was unmarried and left no issue, and the will contains a clause to the effect that if any person other than [54]those mentioned should prove he was an heir, he gave to such person one dollar. In the will the decedent named Gladys E. McCormick executrix to act without bond. In due time she filed a petition asking that the will be admitted to probate. Before the hearing of that petition the brothers and sisters filed a contest alleging that the will was made under undue influence exercised by Gladys E. McCormick and that at the time the will was executed the decedent was incompetent. Thereafter the contest came on for a hearing. The jury returned a verdict against the contestants. Thereafter the will was admitted to probate.

On the hearing of the contest Gladys E. McCormick appeared and defended the will. The same attorneys who presented the will for probate upon the request of Gladys E. McCormick also represented her in the will contest.

After the said estate had been administered and was in a condition to be closed Gladys E. McCormick, as executrix, filed her first and final account and petition for distribution. Therein, as a part of the account, it was recited, “The said executrix and her attorneys have performed extraordinary services in the said proceedings consisting of the following: 1. The successful defense of the contest of the last will of said deceased; ...” The legatees and devisees appeared through their attorneys and opposed any allowance to either the executrix or her attorneys. After a hearing duly had the trial court sustained the objections of the legatees and devisees and refused to make any allowance. That refusal is the order complained of and from which this appeal was taken.