In re Currier's Estate

• Citation: 74 P. 340,19 Colo.App. 245
• Parties: In re CURRIER'S ESTATE. v. JOHNSON et al. CURRIER
• Decision Date: 09 November 1903
• Court: Court of Appeals of Colorado

74 P. 340

19 Colo.App. 245

In re CURRIER'S ESTATE.

CURRIER v. JOHNSON et al.

Court of Appeals of Colorado

November 9, 1903

Appeal from Weld County Court.

Petition by Bruce F. Johnson and others for an allowance for counsel fees, to be paid out of the estate of Warren Currier deceased. From a judmgent awarding counsel fees, Henry F Currier appeals. Reversed.

See 73 P. 882.

Chas D. Todd, for appellant.

Esteb &amp Wolff and H.N. Haynes, for appellees.

GUNTER J.

Warren Currier died, leaving a will whereby he appointed appellees Johnson and Wheeler as executors of his estate, and as the testamentary trustees thereof. They qualified, and for some time discharged their duties executorial and as trustees. Wheeler resigned, which resignation was accepted by the county court of Weld county, in which the will of the deceased had been probated, and in which the estate was being administered. By the same court appellee Clark was appointed as successor. For some time the duties executorial and as testamentary trustees were performed by Johnson and Clark, when both resigned. The terms of the will are fully set out in No. 2,285, Virginia Currier et al., Plaintiffs in Error, v. Bruce F. Johnson et al., Defendants in Error (recently decided by this court) 73 P. 882. Such suit, instituted in the district court of Weld county, and transferred to the district court of Arapahoe county, was by the grandchildren of Warren Currier, residuary legatees of the principal estate, and the widow of Warren Currier, against appellees, Johnson, Wheeler, Clark, and other parties, to have an accounting for losses sustained through the principal estate being depleted by the alleged fraudulent and illegal acts of appellees and their successors as trustees, and for other relief. A general demurrer to the complaint was sustained, the court holding that it had no jurisdiction of the proceeding. Application was made to that court by appellees for an order allowing them counsel fees for such expense incurred in that proceeding. That court did not allow such fees, but expressed its opinion, in an advisory way, that the county court, in which the administration of the estate of Warren Currier was pending, should make the allowance, and as to the amount. Appellees thereafter filed their petition in the county court in the matter of the above estate, wherein they recited the institution of the suit in the district court against themselves and others, the filing of the demurrer, the advisory order of the court as to the allowance of counsel fees, and prayed the county court to allow them fees in accordance therewith. To this petition appellant, one of the beneficiaries of said estate, demurred. The demurrer was overruled, and thereupon the court entered the following judgment of allowance: "It is therefore ordered that said respondents, James Tuckerman and William Mayher, executors of the last will and testament of Warren Currier, deceased, pay out of the income fund in their hands belonging to said estate of Warren Currier, deceased, the said sum of $500, as attorney's fees to the said petitioners, to wit, the sum of $100 to Charles H. Wheeler, the sum of $200 to Bruce F. Johnson, and the sum of $200 to Horace G. Clark, and make report thereof in their next quarterly report filed herein." From this judgment, appellant, one of the beneficiaries of the income fund, brings this appeal.

Wheeler had not been an executor of said estate since 1893. Johnson and Clark ceased to be executors in January, 1897. The suit, for counsel fees incurred in the defense of which they ask to be allowed, was instituted in November, 1899. This is not a case where an executor or other personal representative asks to be allowed his reasonable counsel fees, expended in good faith in behalf of the estate under administration, but is a claim filed by third parties for counsel fees arising in defending a suit instituted against them for an accounting for losses sustained through the principal estate, of which they were once executors and trustees, being depleted by their alleged fraudulent and illegal acts as its trustees, and for other relief.

1. Is the judgment allowing this claim appealable? A claim was filed against the estate by appellees. According to the recitals of the judgment, it was considered, and a judgment made allowing it and ordering payment by the representatives out of the income fund in their hands. We think the order entered determined the matter disputed between the claimants and the estate, so that it was no longer open to contention that it was a final judgment. Clemes v. Fox, 6 Colo.App. 377 387, 40 P. 843. "A formal entry of judgment in such cases, after the manner of judgment...