In re Estate of Merica

• Decision Date: 23 December 1915
• Docket Number: 18278
• Citation: 155 N.W. 887,99 Neb. 229
• Parties: IN RE ESTATE OF SARAH J. MERICA. JOHNATHAN MERICA ET AL., APPELLANTS, v. JULIUS L. GREER, ADMINISTRATOR, APPELLEE
• Court: Nebraska Supreme Court

155 N.W. 887

99 Neb. 229

IN RE ESTATE OF SARAH J. MERICA. JOHNATHAN MERICA ET AL., APPELLANTS, v. JULIUS L. GREER, ADMINISTRATOR, APPELLEE

No. 18278

Supreme Court of Nebraska

December 23, 1915

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.

REVERSED.

Frederick Shepherd, for appellants.

John P Breen, contra.

OPINION

MARTIN, C.

Johnathan Merica and his wife, Sarah J., lived at Blair, Nebraska, where they had a small fruit farm. The husband was about 80 years of age and the wife 70. In 1909 they came to the city of Lincoln to live with a daughter, Mrs. Oelting. Thereafter the wife became insane, and upon a hearing before the insanity board was duly committed to the insane asylum. Soon thereafter the daughter, Mrs. Oelting, was appointed guardian for her mother. After a lapse of several months a sister, who resided in Seward county, took the incompetent out of the asylum on parole, and procured her release by proceedings in habeas corpus before the county court of that county. Immediately thereafter the incompetent made application to the county court of Lancaster county in the original guardianship proceedings to be discharged therefrom. This application was unsuccessful. A few months later, while she was at Oakland, Nebraska, she made a will, making no mention of her husband, and allowing her daughter, Mrs. Oelting, one dollar, and giving some of her property to her sister and the rest to her other children. She died in Omaha not long after making this will. The will was offered for probate in the county court of Douglas County, and the husband, Johnathan Merica, employed counsel and contested the will, and the same was set aside for the want of testamentary capacity. No appeal was taken from this judgment. Johnathan Merica incurred costs, expenses and attorney's fees in securing the setting aside of the will. His claim and that of the attorneys employed by him for these costs, expenses and attorney's fees was disallowed by the county court, and on appeal to the district court a demurrer was sustained to the petition and the case was dismissed, and is now here on appeal.

This precise question has never been before this court. In Mathis v. Pitman, 32 Neb. 191, 49 N.W. 182, and in Seebrock v. Fedawa, 33 Neb. 413, 50 N.W. 270, the unsuccessful contestants of a will were allowed to recover their costs and attorney's fees upon the ground that they had instituted the contest in good faith and upon reasonable grounds. But these cases were overruled in Wallace v. Sheldon, 56 Neb. 55, 76 N.W. 418, wherein Commissioner Ragan wrote the opinion and said: "We do not attempt to formulate a rule for determining what state of facts will justify a court in any case in awarding costs to an unsuccessful litigant, but what we do decide is that the courts are not invested with the discretion to award costs or attorney's fees to an unsuccessful contestant of a will simply and solely because of the fact that he undertook the contest in good faith, and at the time he did there existed probable cause for the contest."

In the case of Atkinson & Doty v. May's Estate, 57 Neb. 137, 77 N.W. 343, which was an unsuccessful contest of a will, Commissioner Ragan, again writing the opinion, said: "The estate of a decedent is not liable to an attorney for services rendered by him for and at the request of a legatee under decedent's will in a contest thereof." No authorities are cited.

In St. James Orphan Asylum v. McDonald, 76 Neb. 630, this court held: "The estate of a decedent is not ordinarily liable to an attorney for services rendered by him, for and at the request of a legatee under decedent's will, in a contest thereof." This was a case wherein the attorneys for a legatee and proponent of a will were successful in sustaining it, and then sought to make their services a charge against the estate when their client received under the will three-fourths of the estate, amounting to $ 150,000.

Thus it appears that the question of the allowance of attorney's fees as a claim against an estate has never come squarely before this court in a case where such attorneys were successful in setting aside a will.

This court has held that the county court has authority to allow attorneys reasonable fees as a claim against the estate when such attorneys were employed by the executor and rendered services which were necessary...