In re Faling

• Decision Date: 16 December 1924
• Citation: 231 P. 148,113 Or. 6
• Parties: IN RE FALING. PETITION OF BURNETT ET AL.
• Court: Oregon Supreme Court

231 P. 148

113 Or. 6

IN RE FALING. PETITION OF BURNETT ET AL.

Supreme Court of Oregon

December 16, 1924

In Banc.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

On rehearing. Former opinion affirmed, and case remanded.

For former opinion, see 228 P. 821.

Clark, Skulason & Clark and W. D. Burnett, all of Portland, for appellants.

Blaine B. Coles and Rogers MacVeagh, both of Portland, for respondent.

PER CURIAM.

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's Estate, Petition of Burnett et al. (Or.) 228 P. 821. In this connection also see In re Faling's Estate, Children's Home et al. v. Strong et al. (Or.) 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 untimately 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 et al., 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 in In re Falings' Estate, 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...