Combs & Hoose v. Security-First National Bank

SHINN, P. J. The appellants Lee Combs and Harned Pettus Hoose are attorneys at law and W. Erland Phelps is a beneficiary of a trust set up in the will of his mother, Laura S. Phelps, which gives him a life estate in one-half the estate of the testatrix. The attorneys filed on behalf of Mr. Phelps a “Petition for allowance of income from estate prior to distribution to trustee, or in the absence of the allowance of said petition for partial distribution to the trustee. ’ ’ It was alleged that Mr. Phelps had been receiving from his mother during her lifetime $500 per month and $200 additional for services, and, inferentially, that he had received nothing from the estate between January, 1953, when his mother died, and October 1953 when he filed a petition captioned as above. It was not alleged that the executors were neglecting their duties in the administration of the estate. Opposition to the petition was filed and after a hearing the court distributed $20,000 to a brother of the petitioner and $20,000 to the trust. Thereafter appellants filed a petition for an allowance of $2,000 as attorneys’ fees for services in connection with the above mentioned petition on behalf of Mr. Phelps. The request for attorneys’ fees was denied and this appeal follows.

The appellants say in their brief: “The issues to be determined on this appeal are as follows:

“(a) When a will duly admitted to probate provides for the withholding of one-half of the estate in a trust to maintain one of two beneficiaries thereof; when the executors refuse to distribute said estate although the estate is in condition to be distributed and they are able to do so; and when the estate is ready and able to set up the trust and commence the maintenance provisions: is the attorney for the trust beneficiary entitled to compensation from the estate under the provisions [852]of Section 911 of the Probate Code and under the law, where he by petition duly prepared and heard in court compels the executors to make the distribution to the trustees in order to carry out the maintenance provisions of the trust over their objection and against their will, and where that attorney prepares and obtains the signature of court upon the order of partial distribution to accomplish that purpose and thereby benefits the estate and enhances the corpus ?

“(b) Is that attorney entitled to such compensation from the estate as a matter of law where the facts in relation to the matter are uncontradicted and not in issue 1 ’ ’