12 N.W.2d 761 | S.D. | 1944
This case was before the court on a prior appeal. In re Engebretson’s Estate, 68 S. D. 255, 1 N. W.2d 3.51, 142 A. L. R. 1454. Following the decision of this court in the former appeal the controversy was tried on its merits before the circuit court. The circuit court awarded the petitioners an attorney fee of $1,000 from which award this appeal has been taken.
It was held on the prior appeal that an allowance may be made out of an estate of a deceased person for services of attorneys for beneficiaries where those services are distinctly beneficial to the estate and became necessary either by reason of laches, negligence or fraud of the legal representative of the estate. Appellants’ present contentions are that the services for which the allowance was made were not beneficial to the estate nor were they necessary by reason of laches, negligence or fraud of the executor.
Appellants first argue that the services of petitioners related only to a dispute among the heirs and that, these
Appellants contend that all of these proceedings were without benefit to the estate because the judgment which was obtained in favor of the estate was against one of the heirs, and it is conceded that this heir is insolvent and that the only possible recovery under the judgment will be in the nature of an offset against C. L. Engebretson’s distributive share of the estate, which amounts to $3,500. However, we think it clear, and it is apparently not contended otherwise, that there was a direct benefit to the estate when the judgment in favor of C. L. Engebretson and against the estate was set aside, and that this benefit was to the extent of the judgment, which amounted to $1,913.82. We also believe that obtaining the judgment against C. L.
Appellants further claim that any benefit to the estate by virtue of the facts cited above was nullified by reason of petitioners participating in certain estate matters and litigation occurring in Minnesota. We have carefully considered the record in this regard and find such contention without merit.
On a prior appeal in this estate we allowed attorney fees to the administrator’s attorney for legal servicés in connection with this C. L. Engebretson action. In re Engebretson’s Estate, 68 S. D. 572, 5 N. W.2d 57. We made such allowance on the basis that the administrator having paid the judgment, which on its face was a valid judgment against the estate, was entitled to defend it in his capacity as administrator (Graff v. Engebretson, 66 S. D. 45, 278 N. W. 28), and that the attorney fees were incurred' in the
This estate has now been before this court on six different occasions. It is apparent from the briefs filed ^and argument of counsel that much bitterness has been engendered not only among the heirs and the administrator but also among counsel. In view of the intimation that other appeals are forthcoming we cannot refrain from stating that, in our opinion, the time has been reached when personal feelings and animosities should be submerged, and the estate no further dissipated by the expense of litigation.
The judgment appealed from is affirmed.