Selby v. Bank of America

SALSMAN, J. This is an appeal from an order denying appellant’s petition for an award of attorneys’ fees to he paid out of the assets of the above entitled estate.

By her will the decedent devised the residue of her estate to the Bank of America, in trust for the life of her son Benjamin. The will provided that upon the death of decedent, her husband, and son Benjamin, the trust should terminate and the remainder of the trust be delivered “to the issue of my [466]son, Benjamin, in equal shares, share and share alike. If any of said children, being the issue of Benjamin, should die prior to the distribution of said trust estate, then the Trustee shall deliver of the balance that said child would have received to the remaining child or children of Benjamin in equal shares.” The decedent defined the term “issue” to “include legally adopted as well as natural children, and the issue of any legally adopted or natural child.”

Benjamin was twice married. Appellant Robert is the natural son of the first marriage. After her divorce from Benjamin, Robert’s mother remarried, and Robert was adopted by his mother’s second husband. On Benjamin’s remarriage he adopted his second wife’s son Gary.

The Bank of America, as executor, filed a petition to determine if Robert or Gary or both would be entitled to distribution of the residue of the estate upon the death of Benjamin. In response to this petition, both Robert and Gary appeared by their respective attorneys. Each claimed to be an heir, and each claimed to be entitled to succeed to the entire remainder of the trust property upon the death of Benjamin. It does not appear that any evidence or testimony was taken by the probate court to resolve these conflicting claims. It does appear that both Robert and Gary, through their separate counsel, stipulated “That claimants, Gary F. Myers and Robert C. Selby, are each the issue and children of Benjamin Myers, pursuant to and within the meaning of the Last Will and Testament of the Testatrix, and Codicil thereto, and that claimants, Gary F. Myers and Robert C. Selby, are each entitled to receive the remainder of the trust estate upon the death of Benjamin Myers. ...” The order of the probate court determining the interests of the parties followed the terms of the stipulations. In addition, and as an interpretation of the will, the order provided that “. . . the intention of the testatrix was that if any child of Benjamin Myers should die prior to the distribution of the trust estate and said child left child or children of his own, natural or adopted, said child or children would take his share by right of representation. ’ ’