Hunter v. Craft

• Decision Date: 25 September 1979
• Docket Number: B,No. P-48-76,No. 944,944,P-48-76
• Citation: 287 Or. 465,600 P.2d 415
• Parties: Louise E. HUNTER, Petitioner, Respondent/Cross-appellant, v. Clifford CRAFT, Personal Representative and Proponent, Petitioner, Clinton R. Hunter, Contestant, Respondent/Cross-appellant, John C. Hunter Greene, Carol L. Hunter, Lucille O'Brien, Shriner's Hospital for Crippled Children, Jackson County Chapter of the American Red Cross, Ashland Lodgeenevolent and Protective Order of Elks of Ashland, Oregon, Lawrence L. Clark, Mrs. Alfred (Rose) Greene or Alfred Greene, Monague Hunter, and B. J. Holland, Heirs and Devisees. ; CA 9254; SC 26090. . *
• Court: Oregon Supreme Court

Page 415

600 P.2d 415

287 Or. 465

Louise E. HUNTER, Petitioner, Respondent/Cross-appellant, v. Clifford CRAFT, Personal Representative and Proponent, Petitioner Clinton R. Hunter, Contestant, Respondent/Cross-appellant John C. Hunter Greene, Carol L. Hunter, Lucille O'Brien Shriner's Hospital for Crippled Children, Jackson County Chapter of the American Red Cross, Ashland Lodge No. 944 Benevolent and Protective Order of Elks of Ashland, Oregon, Lawrence L. Clark, Mrs. Alfred (Rose) Greene or Alfred Greene, Monague Hunter, and B. J. Holland, Heirs and Devisees.

No. P-48-76; CA 9254; SC 26090.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted June 4, 1979.

Decided Sept. 25, 1979.

Thomas C. Howser, Ashland, argued the cause for petitioner. With him on the brief were Ronald K. Cue, and Cottle, Howser & Hampton, Ashland.

Joel B. Reeder, Medford, argued the cause and filed a brief for respondent-cross/appellant Louise E. Hunter.

John W. Eads, Jr., Medford, argued the cause for respondent/cross-appellant Clinton R. Hunter. On the brief were Karen C. Allan, and Frohnmayer, Deatherage, Foster & Purdy, Medford.

PETERSON, Justice.

Appellant Clifford Craft petitions this court for review of a Court of Appeals order denying attorney fees and expenses he incurred on appeal in Hunter v. Craft, 37 Or.App. 545, 588 P.2d 617 (1978).

This case involves a will contest in which Clifford Craft, as the personal representative named in the will of George Hunter, petitioned for probate of the will. Louise Moon Hunter, decedent's widow, petitioned to have the will declared revoked by operation of ORS 112.305 ¹ and requested distribution of the entire estate to her as the sole intestate heir. Clinton Hunter also asserted that the will was revoked by operation of ORS 112.305, that he was the decedent's son, and that he was entitled to an intestate share of the distribution.

The trial court decreed that the will was revoked by the subsequent marriage of the testator, that the decedent died intestate, that Clinton Hunter was not the son of decedent, and that Craft should be awarded attorney fees and expenses. Craft appealed the refusal of the trial court to admit the will to probate, Louise Moon Hunter cross-appealed the award of attorney fees and litigation expenses to Craft, and Clinton Hunter cross-appealed the denial of his petition to share in distribution of the estate.

The Court of Appeals held that the will was revoked by the subsequent marriage of the decedent, reversed the trial court's denial of Clinton Hunter's petition to share in the distribution, and affirmed the trial court's award to Craft of attorney fees and litigation expenses incurred in the trial court.

Even though unsuccessful in the Court of Appeals, Craft filed a motion for attorney fees and other expenses incurred incident to the appeal. Craft's motion was denied by the Court of Appeals, without opinion. Review was requested and granted on but one issue: Where a personal representative in good faith unsuccessfully prosecutes an appeal from the denial of a petition to admit a will to probate, is the personal representative entitled to recover necessary expenses and attorney fees incurred on appeal? We answer this question in the affirmative.

Statement of Parties' Contentions

Craft claims entitlement to necessary expenses and attorney fees under a line of cases culminating with In re Feehely's Estate, 182 Or. 246, 187 P.2d 156 (1947), and under ORS 116.183(2), which provides:

"A personal representative who defends or prosecutes any proceeding in good faith and with just cause, whether successful or not, is entitled to receive from the estate his necessary expenses and disbursements, including reasonable attorney fees, in the proceeding."

The other parties resist Craft's petition for costs and attorney fees, citing Adair v. McAtee, 236 Or. 391, 385 P.2d 621, 388 P.2d 748 (1964); In re Carlson's Estate, 156 Or. 597, 68 P.2d 119 (1937); In re Shepherd's Estate, 152 Or. 15, 41 P.2d 444, 49 P.2d 448 (1935).

They also claim that there was no "just cause" for pressing the appeal, and that the costs and attorney fees sought are not reasonable.

Oregon Cases Allowing Attorney Fees to Personal

Representative on Appeal

In a number of cases we have held that a personal representative, in defending a will offered for probate in good faith, is entitled to recover his expenses and attorney fees both in the trial court and on appeal, even though unsuccessful.

As early as 1926, in In re Will of Hough, 120 Or. 223, 227, 251 P. 711, 712 (1926), we held:

"It is the duty of an executor to appeal if in good faith he is satisfied that the will has been improperly rejected. The duty is imposed upon an executor or executrix to execute the will of the testator. The executrix is the sole trustee for all persons having an interest therein, and the only legal representative of the estate of the deceased. If, as in the present case, the executrix could not properly execute the will and carry out the trust in accordance with the decree of the trial court, it was appropriate for her to appeal in the interest of all concerned."

Relative to the duty of the personal representative, we stated in In re Shepherd's Estate, 152 Or. 15, 42-43, 41 P.2d 444, 49 P.2d 448, 454 (1935):

"Under the procedure which has been adopted and followed in this state, the duty is imposed upon the executor after the will has been probated in common form to defend it against attack when he has reasonable ground to believe the will valid; and in such instances it has been the common practice of the court to allow to the executor, whether successful or unsuccessful, if he acts in good faith, the reasonable expense incurred in such defense, including attorneys' fees. * * * The fact that he was a beneficiary under the will did not lessen his duty or his right as executor to have such expense paid out of the estate."

However, costs and expenses of the personal representative were not allowed in In re Carlson's Estate, 156 Or. 597, 605, 68 P.2d 119, 123 (1937), because the personal representative was "seeking to sustain a will which he did not honestly believe was the deceased's last (will)."

In re Feehely's Estate, 182 Or. 246, 187 P.2d 156 (1947), involved an estate in which the executor claimed attorney fees for appealing the denial of a petition for the sale of real property in the estate. The executor's appeal was unsuccessful.

The statute then in effect, OCLA § 19-1009, provided:

"An executor or administrator shall be allowed, in the settlement of his account, all necessary expenses incurred in the care, management, and settlement of the estate, including reasonable attorney fees in any necessary litigation or matter requiring legal advice or counsel. * * *."

The Court held (182 Or. at 256-57, 187 P.2d at 160):

"Notwithstanding the executor, had there been no appeal, would have been protected had it abided by the decision of the probate court, it still remained its duty to execute the will of the testatrix. In re Will of Hough, 120 Or. 223, 227, 251 P. 711. The executor was of the opinion that, under the language of the will, properly construed, it had no authority to use income to pay claims against the estate. That it was not without a reasonable basis for that opinion is manifest. The question was a novel one in this state. The Probate Court had rendered two decisions supporting the executor's view, and, as indicated by the opinion of this court in the case, there was substantial judicial authority on its side of the question. Under these circumstances, we think that in the sense of the statute the litigation was necessary, that it was the duty of the executor to prosecute the appeal, and that for its defeat in this court it should not be penalized by being required to pay its counsel fees and costs. In re Johnson's Estate, 100 Or. 142, 162, 196 P. 385, 1115. The conduct of the executor 'is to be tested by the rule of good faith, and not by mere success.' * * *."

The court held that the expenses incurred by the executor in prosecuting the appeal "were properly chargeable upon the estate fund."

And in Hofen v. U. S. National Bank et al, 215 Or. 603, 608, 335 P.2d 86, 88 (1959), we awarded "reasonable disbursements * * *, including a reasonable attorney's fee" to a losing executor on appeal. In that case, the executor had prevailed in the trial court.

Applicability of Adair v. McAtee

Attorney fees on appeal were claimed in Adair v. McAtee, 236 Or. 391, 385 P.2d 621, 388 P.2d 748 (1964), pursuant to a contract containing a provision that "in case suit or action is instituted to collect said sum or any part thereof, purchaser promises to pay such additional sum as the Court may adjudge reasonable as Attorney's fees in such suit or action." We examined earlier Oregon cases involving the award of attorney fees on appeal, and acknowledge that they were "in hopeless confusion." 236 Or. at 394, 388 P.2d 748, 749. We resolved that confusion by adopting the rule that in the absence of a statute or contractual provision which specifically granted the right to attorney fees on appeal we would not award attorney fees on appeal. We neither cited nor discussed any of the probate cases discussed above.

Since Adair, we have adhered to the rule that unless an applicable statute expressly provides for attorney fees on appeal no award of attorney fees will be made, ² but we have not (since Adair ) addressed the issue of whether attorney fees should be allowed to a personal representative who unsuccessfully prosecutes an appeal.

Legislative History of ORS 116.183(2)

Revisions to the Oregon Probate Code were made in 1969. Or.Laws 1969, ch. 591. Section 185 included what is now ORS 116.183(2). It does not expressly provide for attorney fees on appeal.

Louise Moon Hunter and Clifton Hunter argue that Adair prohibits an award of attorney fees. The failure of the 1969 legislative amendments to...