Pryor v. Osborn, Burum & Shortridge

BARNARD, P. J. This is an appeal from an order allowing, as payable from the estate, certain fees for extraordinary legal services in resisting a contest before probate of the will of the deceased.

Under the terms of his will the deceased devised certain real property to his housekeeper, Ann Stevenson, and named her as executrix. The will also devised certain other real property to Raymond Pryor, a grandson of the testator, and left all of the residue of the estate, share and share alike, to Everett W. Pryor, a son of the deceased, and Alta U. Pryor, Everett’s wife. The property devised to Ann Stevenson was appraised at $1,900, that to the grandson at $400, and that given to the son and his wife at $3,027.14.

[736]When the will was presented for probate Everett W. Pryor filed a contest to which Ann Stevenson filed an answer. After a hearing, the will was admitted to probate and Ann Stevenson was appointed executrix and qualified as such. Subsequently, the attorneys who had represented Ann Stevenson in the contest proceeding filed a petition for the allowance of fees for extraordinary services in defending that contest. Everett W. Pryor, Alta U. Pryor and Raymond Pryor filed answers opposing the granting of the petition in which they alleged, among other things, that Everett W. Pryor had filed and prosecuted the contest to the will with the approval of Alta U. Pryor and Raymond Pryor and while also acting as their agent; that Alta U. Pryor and Raymond Pryor had never authorized Ann Stevenson to defend the contest in their behalf; and that Ann Stevenson had at all times acted for herself and in her own interest in her efforts to sustain the will. The court found that the efforts of the executrix to sustain the will by and through these attorneys had “benefited all the heirs and devisees of said estate, other than Contestant, Everett W. Pryor” and entered an order allowing these attorneys $400 payable out of the estate for extraordinary services rendered in this will contest. This appeal followed and the question presented is whether under such circumstances an order for the payment of such fees out of the assets of the estate may be sustained.

In Estate of Riviere, 8 Cal. App. 773 [98 Pac. 46], an order allowing attorney’s fees for similar services was affirmed but it does not appear that the executor there had any interest in the estate other than as executor, and there is nothing in the opinion to indicate that all of the devisees and legatees under the will were not equally interested in opposing the contest and upholding the will. That case was referred to in Estate of Higgins, 158 Cal. 355 [111 Pac. 8], and approved insofar as it held that attorney's fees, in successfully resisting a contest before probate, may be allowed under some circumstances, the same being “such as to make such an allowance entirely equitable as to all persons interested in the estate.” (Italics ours.)