449 P.2d 424 | Or. | 1969
This is an appeal from a decree denying plaintiff, Mary Malarkey Wall, compensation claimed for services as a co-executor of the estate of Fannie Emma Malarkey and also denying any amount for the services of an attorney employed by her in connection with matters relating to the estate.
Plaintiff and defendants, all children of the decedent, were named as executors in decedent’s will. Plaintiff refused to join with defendants in a petition
In denying plaintiff her executor’s commission the probate court expressly found that “[throughout the administration of the Estate the activities of MARY MALABKEY WALL and her attorneys have not benefited the estate but, on the contrary, have impeded the orderly administration thereof. Their activities may have given aid and comfort to the contestants of decedent’s will.”
The mere fact that plaintiff entertained doubts with respect to the validity of the will which was in probate does not' in itself constitute such “disloyalty” as-to: preclude hér from receiving compensation for her .services as executrix. Before compensation can properly be denied the executrix’s disloyalty must manifest itself in some form of conduct which is detrimental to the administration of the estate in a material way: Annot., 83 ALR 736, 741 (1933). We have been unable to find in the record sufficient evidence of a material detriment to the estate. It is clear that throughout the administration of the estate plaintiff was less than enthusiastic about the disposition that had been made in her mother’s will. Her doubts as to
Two grandchildren of plaintiff and two charities brought a proceeding to contest the will. Each of them had been named as beneficiaries in previous wills executed by decedent. Plaintiff filed an answer in the will contest admitting the paragraph in the complaint alleging that the will in contest was invalid. The contest was finally settled when each of the defendants agreed to pay $45,000 from their bequests.
Defendants also charged plaintiff with aiding the will contestants and the trial court found that the activities of plaintiff and her attorneys “may have given aid and comfort to the contestants of decedent’s will.” The concession in plaintiff’s answer to the complaint in the will contest alleging the invalidity of the will in probate was no more than a reassertion of the view she had previously held, but she also took the position that in spite of her conviction she would administer the estate as if the will were valid. And this she did. The charge that she gave aid and comfort to the contestants of decedent’s will was supported only by evi
“No, I said I did not actively collaborate as such. I didn’t do anything except when they asked me a question about whom to talk to or what to do about getting in touch with somebody, I would tell them all I knew about them. I didn’t even know where to tell them anybody was.”
It seems significant to us that the charges of disloyalty were made against plaintiff for the first time when she sought compensation for herself and her attorney. Prior to that time no effort was made to remove her as a co-executrix under ORS 115.470.
It is our conclusion that there were not sufficient grounds for denying plaintiff compensation for her services as co-executrix. However, we affirm that part of the decree denying plaintiff reimbursement for attorneys fees. We are of the opinion that plaintiff did not have reasonable grounds for the employment of a separate attorney for the purpose of participation in the administration of the estate. Even if it could be shown that she had cause to doubt the competency or fidelity of counsel employed by her co-executors, she should have submitted her grievance to the probate court for a ruling on the matter.
ORS 115.470 provides in part for the removal of an executor who “has been unfaithful to or neglectful of his trust to the probable loss of the applicant or the estate.”
Galt v. Davis, 8 F2d 1012 (D.C. Cir 1925). But see, In re Scott’s Estate, 1 Cal App 740, 83 P 85 (1905).