Crocker-Anglo National Bank v. Richards

WARNE, J. pro tem.* This is an appeal from an order made in the matter of the estate of Manuel E. Perreira, deceased, upon a petition for instructions by the appellant, Crocker-Anglo National Bank.

Decedent, Manuel P. Perreira, died in Modesto, California, on the 24th day of November, 1959, and thereafter appellant filed for probate decedent’s purported will creating testamentary trusts and appointing appellant executor of said will and trustee of the trusts. These testamentary trusts were to endure for the lives of decedent’s three children, his grandchildren and great grandchildren living at the time of his death, the corpus of the trust to be distributed to decedent Is heirs at law upon termination of the several life estates.

A contest was filed by Lena Richards, respondent, one of the three children named as lifetime beneficiaries, on the ground that the decedent’s purported will was not the last will and testament of decedent, and, in substance, that at the time the purported will was executed decedent was not of sound and disposing mind. All of the other living heirs at law, devisees, legatees, and trust beneficiaries named in the will, either individually or through their guardians ad litem, by answer, in the contest proceeding, admit, and likewise affirmatively allege, that the purported will in question is not, upon all the grounds stated in the contest, the last will and testament of the deceased.

After the contest was filed appellant was appointed special administrator of the estate of deceased with general powers and has qualified as such. Appellant, as the executor named in the will, and as the special administrator of the estate of deceased before probate, petitioned the probate court for instructions, alleging that it was necessary to resist the contest of the will in order to effectuate the intent of the decedent. It requested instructions as to its right to retain counsel for the purpose of defending the will at the expense of the estate.

The probate court, responsive to the petition for instructions, made the following order: “.. . that if said Bank retains counsel to defend the Will of Manuel P. Perreira, deceased, it will do so on its own responsibility; and any fees or expenses [371]incurred in retaining and employing such counsel will be a charge against the Bank and not against the Estate of the deceased.” In support of its order the court cited: Estate of Olmstead, 120 Cal. 447 [52 P. 804]; Estate of Pryor, 51 Cal.App.2d 735 [125 P.2d 511]; Estate of Hite, 155 Cal. 448 [101 P. 448]; Estate of Higgins, 158 Cal. 355 [111 P. 8]; Estate of Schwarts, 87 Cal.App.2d 569 [197 P.2d 223]; California Estate Adm. (1960), pp. 976, 977, 978.