243 P. 89 | Or. | 1926
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *508
The petition of Labbe for letters of administration of the MacMullen Estate showed on its face that it was presented five days after his death and that he left a daughter living in Multnomah *509
County surviving him. It was error to grant the petition of Labbe for his appointment as administrator. His appointment was not void, but voidable: Ramp v. McDaniel,
Attorneys' fees for service rendered in connection with a partial administration of an estate by an administrator acting under an erroneous or a voidable appointment are chargeable against the estate as a necessary expense, if they were rendered in preserving or caring for the property of the estate, and were a benefit to the estate: Section 1290, Or. L.; In re FalingEstate,
"Whenever attorneys' fees are properly chargeable to an estate, it is upon the theory that they were incurred for the benefit of the estate as a whole. The books afford many illustrative cases holding that when a contest is narrowed down to the personal interests of proponents and contestants, claims for attorneys' fees against the estate should be denied": Authorities cited.
4 Schouler on Wills (6 ed.), 2528, §§ 3014-3017; Union SavingsBank Trust Co. v. Smith, 26 Ohio, C.C. 317; Nave v.Salmon,
We conceive no way in which the service rendered by the attorneys for Labbe, who are respondents *510
here, could have benefited the estate. Labbe had no rights to letters of administration. It was no benefit to the estate for him to remain as administrator or to prevent the appointment of Miss Waller, the daughter of the deceased. The only property belonging to the estate was the insurance policy. No persons excepting the creditors and the personal representatives of the decedent were interested in that property. The amount of the property could not possibly be increased by the litigation conducted by Labbe. The creditors of the estate would be protected under the administration of Miss Waller as thoroughly as under the administration of Labbe. Either was required under the statute to give a bond amply protecting the creditors. So far as the administration of the estate is concerned it is immaterial whether or not Miss Waller lost her right to inherit from her father by her adoption by her stepfather. Both petitions asserted she was his sole next of kin. Her adoption did not annul the laws of nature. She remained her father's daughter. That question should not have entered into the controversy until the residue of the estate, after satisfying the creditors, was ready for distribution. Whether, under the peculiar circumstances she was the sole beneficiary of the estate could not, and did not, involve the administration of the estate before time for distribution. The services rendered, therefore, by the respondents did not benefit the estate and it was error for the court to have allowed their claim for any amount against the estate. In Upham et al. v. Bramwell,
"In all of the cases cited by plaintiff, the party seeking an allowance of counsel fees and costs, had at his own expense either recovered and brought in the court a fund or property that otherwise would have been lost to the creditors or had instituted proper proceedings to save a trust fund already in court from destruction and to restore it to the purposes of the trust, none of which conditions are present in the instant case."
A similar holding was announced in Ford v. Gilbert,
The order of the Circuit Court allowing the claim of the respondents is reversed and the claim disallowed entirely.
REVERSED.
McBRIDE, C.J., and BROWN and BELT, JJ., concur. *512
Addendum
"An administrator de son tort is not entitled on an accounting to an allowance for sums paid to a surety company for becoming surety on his bond, or for appraisers' and justices' services in taking acknowledgments, nor for services rendered by him or his attorneys, unless such services were rendered in the preservation of the property of the estate, and were conducive to its benefit."
Labbe was a volunteer and not entitled to any remuneration for his services: 28 Am. Eng. Ency. (1 ed.) 499, quoted inState v. Henkle, above, in pp. 435, *513 436 of the official report. His agents and attorneys can be in no better position in relation to their compensation.
It is the rule of practice that costs follow the result unless the opinion directs otherwise. The petition for rehearing is denied. REHEARING DENIED.
McBRIDE, C.J., and BROWN and BELT, JJ., concur.
"The court shall have power to hear and determine in a summary manner all demands against any estate agreeable to the provisions of this act, and which have been so rejected by the executor or administrator, *514 and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases; * *."
Section 1137, Or. L., prescribes:
"Costs may be awarded in favor of one party against another, to be paid personally or out of the estate or fund, in any proceedings contested adversely, but such costs cannot exceed those allowed in the trial of a civil action in the county court. Witness fees and other disbursements similar to those allowed on the trial of a civil action may also be allowed, to be paid in like manner. Orders or decrees for the payment of money may be enforced by execution, or otherwise, in the same manner as orders or decrees for the payment of money in the circuit court."
This section places contested claims against an estate in the same class as other money demands. Messrs. Royal and Huntington Wilson stand in the shoes of plaintiffs in an ordinary action for money in this court.
They do not raise the question in their objections to the cost bill, but it appears that the administratrix demands $2 per page for her abstract and brief. The maximum allowed is $1.25 per page:
