Re Faling Estate , 113 Or. 6 ( 1924 )

Rehearing denied December 16, 1924. ON PETITION FOR REHEARING. (231 P. 148). Messrs. Clark, Skulason Clark and Mr. W.D. Burnett, for the petition.

Mr. Blaine B. Coles and Mr. Rogers MacVeagh, contra. This is a petition for rehearing and reconsideration of the order of allowance made by this court to the petitioners for attorneys' fees in the matter of the estate of Xarifa J. Faling, deceased, on the petition of Coy Burnett, Edwin E. Heckbert, and Russell E. Sewall.

The attorneys filed their petition in the Circuit Court of the State of Oregon for Multnomah County, Department of Probate, in which they sought to obtain an order for allowance of their attorneys' fees for conducting the Faling will contest. The petition was denied. Upon appeal, this court ordered that petitioners be allowed the sum of $21,000 for their services rendered to the estate, which resulted in establishing the true will. For a full statement concerning the services for which they request compensation, see In re Faling Will, Strong et al. v.Smith et al., 105 Or. 365 (208 P. 715); In re Faling'sEstate, Petition of Burnett et al., ante, p. 6 (228 P. 821). In this connection, also see In re Faling's Estate, Children'sHome et al. v. Strong et al., supra (229 P. 694).

Xarifa J.

Faling died on July 5, 1917, leaving no immediate relatives. On July 9, 1917, a will bearing date August 26, 1915, was probated in common form in the probate court of the State of Oregon for Multnomah County. On August 29, 1917, J. Tyler Smith, a first cousin of Mrs. Faling, who claimed to be her sole and next of kin and heir at law, represented by petitioners filed a contest of this will on the ground of mental incapacity on the part of the testatrix and undue influence exercised upon her at the time of the execution thereof. Strong and Mead, the executors of the will and the chief beneficiaries thereunder, answered and denied the incompetency of Mrs. Faling to make the will, and also denied that there was any undue influence brought to bear upon her for the purpose of inducing the execution of that will. They further asserted that the will admitted to probate was the valid last will and testament of Mrs. Faling. Each side was ably represented by skilled counsel.

During the contest, the beneficiaries asserted that Mrs. Faling had executed a will in 1911, which will the petitioners ultimately asserted to be the true and genuine will, and which they succeeded in having probated as such. For the great amount of labor performed by the petitioners, see the cases above noted.

While the 1915 will was upheld by the lower courts as the true will of Mrs. Faling, in this court that will was set aside and held to be invalid, and the will of 1911 was held to be her true will. See In re Faling's Estate, Strong et al. v. Smith etal., 105 Or. 365 (208 P. 715). We there directed, as a part of the decree, that —

"Under all the circumstances, the costs and disbursements of this proceeding in this court and in the lower court should be paid by the estate of Xarifa J. Faling, deceased. It is so ordered."

In the preparation of our opinion reported ante, p. 6 (228 P. 821), we assumed that the petitioners had collected their costs and expenses incurred in the will contest, as provided by the decree in that case. We allowed the petitioners the sum of $21,000, as reasonable attorneys' fees for services rendered by them in conducting the necessary litigation for proving the will of 1911. We did not there, nor do we here, make any allowance for their services rendered to J. Tyler Smith prior to their attempt to establish the will of 1911.

It is argued with much earnestness and force and reason that the petitioners "are entitled, morally and equitably, to as much compensation as was judicially allowed to those who sought unsuccessfully to uphold the invalid will."

This court has never held, nor intimated, that the amount of fees ordered by the lower court to be allowed Thomas N. Strong and C.L. Mead for their attorneys' fees, and for their extra services as executors, were reasonable or just. There was an appeal from an order of the court settling the final account of Strong and Mead as executors under the alleged will of Xarifa J. Faling, deceased, of date 1915. But this court never acquired jurisdiction of that appeal. Without jurisdiction we were unable to determine the validity of the order made by the probate court. That appeal was dismissed by reason of a stipulation made and entered into between the attorneys for the executors, Strong and Mead, and the attorneys for the Children's Home. In that case (see 229 P. 694), Mr. Chief Justice McBRIDE, in speaking of the attorneys' fees, among other things, said:

"In this case the executors introduced the evidence of attorneys who placed the amount of compensation which should be allowed as attorneys' fees at from $75,000 to $100,000. This testimony was from men of high standing in their profession, and was such as was entitled to some degree of credit from the court, although on the other hand other attorneys of high standing fixed the fees at from $20,000 to $25,000. Upon this testimony there was an issue of fact presented to the court as to what was a reasonable fee — whether the highest fee of $82,000, or the lowest, $20,000, was a reasonable fee. The court said $50,000. * * It is not necessary for us to say what our judgment would have been here, but each party had a right to appeal and to have its contention on this subject heard in this court. * * However, nothing here said is to be construed as precluding a remedy to the Home against trustees who may have fraudulently frittered away valuable rights."

We adhere to our former opinion holding that $21,000 is a reasonable attorney fee for services rendered by petitioners to, and chargeable against, the estate of Xarifa J. Faling, deceased.

However, it is asserted, in effect, by petitioners' brief in support of their motion for a rehearing, that a burden amounting to about $10,000 in legitimate costs and expenses has been assumed by them in carrying on and conducting the contest resulting in the establishment of the true and genuine will, and that such costs and expenses have not been paid. This may be so. But from the record before us we cannot, after due diligence, ascertain the true and full amount of costs, charges and expenses incurred by them in that contest. Hence, while we disallow the petition for rehearing, we remand to the lower court the matter of the costs, charges and expenses incurred by petitioners in carrying on the contest for the annulment of the invalid, and the proving of the valid, will. In that court the petitioners may file and establish their claim for expenses and costs incurred by them in the prosecution of the necessary proceedings in annulling the invalid will and establishing the will of 1911, which resulted in the preservation of the fund created by Mrs. Faling and willed by her to the Children's Home, and the court is directed to enter a judgment thereon.

REHEARING DENIED.