In re Curtis' Estate
| Decision Date | 27 December 1938 |
| Docket Number | 14486. |
| Citation | 103 Colo. 361,86 P.2d 260 |
| Parties | In re CURTIS' ESTATE. v. STRICKLER et al. FIRST NAT. BANK OF COLORADO SPRINGS |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, El Paso County; John M. Meikle, Judge.
In the matter of the estate of Helen Waterman Curtis, deceased. To review a judgment allowing David P. Strickler and another attorneys' fees from estate funds for services in connection with litigation concerning construction of deceased's will, the First National Bank of Colorado Springs, as executor of the will, brings error. On application for supersedeas.
Judgment affirmed.
Haney & Jackson and Charles J. Simon, all of Colorado Springs, for plaintiff in error.
David P. Strickler and Thomas M. Burgess, both of Colorado Springs pro se.
This proceeding was initiated in the county court of El Paso county by petition of defendants in error, seeking an order allowing them attorney fees from estate funds for services in connection with litigation concerning the construction of the will of Helen Waterman Curtis, the executor of whose estate appears here as plaintiff in error. The petition was denied and the claim disallowed by the county court; but on appeal to the district court petitioners prevailed, and the judgment allowing the claim is now Before us for review. Both parties request that the matter be determined upon application for supersedeas.
A reference to the reported decision in Mellor v Bennet, 101 Colo. 43, 70 P.2d 356, will disclose that the litigation was instituted because of the ambiguity of the terms of the will involved, the executor requesting the court, in connection with the proceedings for settlement of the estate, to construe the will. All beneficiaries were made parties to the proceeding. Alma D. Bennet, one of the life beneficiaries, contended for a certain construction with which the county court did not agree; but which was adopted by the district court on appeal, and the judgment was affirmed by us on the review.
It may be conceded that the construction of the will insisted upon by Alma D. Bennet would result favorably to her as a beneficiary, but this concession does not detract from the fact that the litigation itself was instituted specifically for the purpose of construing the will.
Counsel for plaintiff in error say: 'How it was determined, and whether in a manner favorable to Alma D. Bennet, the client of petitioners herein, or in a manner favorable to the interests of Mellor, et al., was immaterial.'
The defendants in error, in their petition below recited inter alia, 'the services of your petitioners were necessary to arrive at a correct interpretation of said will.' This was a statement of ultimate fact. No pleadings were at any time filed by the plaintiff in error, or the other parties to this proceeding, although they were granted time and afforeded an opportunity to do so by...
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...White, 348 Mo. 640, 154 S.W.2d 759, l. c. 760; In re Curtis' Estate (First National Bank of Colorado Springs v. Strickler et al.), 103 Colo. 361, 86 P.2d 260. (2) Where a testator has expressed himself so ambiguously as to make it necessary to institute a suit in equity for construction of ......
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...costs of administration. United States Fid. & Guar. Co. v. People ex rel. Miller, 44 Colo. 557, 98 P. 828 (1908); In re Curtis Estate, 103 Colo. 361, 86 P.2d 260 (1938). No allowance may be made out of the estate of a deceased person for the services of an attorney not employed by the perso......
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