In re Faling's Estate

• Decision Date: 09 September 1924
• Citation: 228 P. 821,113 Or. 6
• Parties: IN RE FALING'S ESTATE. PETITION OF BURNETT ET AL.
• Court: Oregon Supreme Court

228 P. 821

113 Or. 6

IN RE FALING'S ESTATE. PETITION OF BURNETT ET AL.

Supreme Court of Oregon

September 9, 1924

In Banc.

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

In the matter of the estate of Xarifa J. Faling, deceased. On petition of Coy Burnett and others for attorneys' fees. Allowed in part.

The appellants filed their petition in the circuit court of the state of Oregon for the county of Multnomah, department of probate, in which they averred, among other things, that they are attorneys at law of this state, maintaining offices as such in Portland, Or.; that Xarifa J. Faling died testate in Portland, Or., on July 5, 1917, age 76 years, leaving an estate consisting of real and personal property of the value of approximately $500,000; that on July 9, 1917, Thomas N Strong and C. L. Mead offered for probate in the county court of Multnomah county, Or., a purported will executed by Xarifa J. Faling, bearing date August 26, 1915, which set forth a number of legatees, to each of whom was bequeathed the sum of $3,000, and devised and bequeathed to Thomas N. Strong and C L. Mead, in equal shares, all the remainder of the estate both real and personal, aggregating in value a sum greater than $450,000. These two legatees were nominated in the will as executors. The petition avers that on that day, by order of the court, Strong and Mead were appointed executors of the will, qualified as such, took charge of all the property of the estate, and proceeded with the administration. It is then averred that on August 26, 1915, the date of the execution of the will hereinabove referred to, Xarifa J. Faling was not of sound and disposing mind and memory, and that on August 23 1917, the appellants, as attorneys for W. Tyler Smith, as next of kin of Xarifa J. Faling, instituted a proceeding for the purpose of having that will declared invalid and void on the ground of mental incapacity of the testatrix and of undue influence exercised upon her at the time of its execution. An answer to that petition was filed by Thomas N. Strong and C L. Mead, individually and as executors, in which they denied the incompetency of Mrs. Faling, and alleged that, at the time of the execution of the will, she was in every particular competent to make a will, and that she was of sound and disposing mind and memory and fully understood what she was doing, and that the will of August 26, 1915, was valid. These petitioners, as attorneys for W. Tyler Smith, filed a reply to the answer of the executors, in which denial was made of all the affirmative allegations of the answer relating to mental capacity of the testatrix and absence of undue influence exercised upon her. On November 12, 1917, the cause came on for hearing before the court, upon the issues made by the pleadings. During the progress of the trial, the evidence developed that on August 25, 1911, Xarifa J. Faling had made a will, to which she had subsequently added six codicils, in which will she bequeathed and devised her property in a manner wholly different from the disposition claimed by Strong and Mead under the will of August 26, 1915.

Petitioners aver that, upon learning of the 1911 will and its contents, assignments of certain bequests made by that will were executed and delivered to W. Tyler Smith; that thereafter, and on July 2, 1918, petitioners filed an amended petition in the will contest, on behalf of W. Tyler Smith, as assignee, and on behalf of all other beneficiaries under the will of August 25, 1911, which averred that the pretended will of August 26, 1915, was invalid and void by reason of the mental incompetency of the testatrix, and that she was acting under undue influence exercised upon her at that time by C. L. Mead and others, and alleged that the will of August 25, 1911, with the codicils thereto, constituted the last will and testament of Xarifa J. Faling, prayed for a decree declaring the same to be her last will and testament, and that the same be established and probated as such. An answer was filed to the amended petition by Strong and Mead, individually and as executors, in which they averred that the will of 1911, with the codicils thereto, was not the last will and testament of Mrs. Faling, and averred that her last will was that of August 26, 1915.

It is averred that the trial of the cause extended over several months in the taking of testimony and the argument of counsel; that, after months of investigation, 90 witnesses were produced in court by appellants in support of the allegations of their petition contesting the will; and that about 50 witnesses were produced by Strong and Mead in defense. The hearing occupied 82 days in the taking of testimony and arguments of counsel. The probate court denied the contention of appellants on behalf of the will of August 25, 1911, and entered a decree ratifying and confirming the probate of the will of August 26, 1915, as the last will and testament of Xarifa J. Faling, and made an order dismissing the proceedings brought by the appellants. The cause was appealed to the circuit court, the trial there occupying 50 days. The circuit court also sustained the will of 1915, and held against the will of 1911. An appeal was taken to the Supreme Court of the state of Oregon, where the cause was again well briefed and vigorously tried. This court sustained the contest proceedings against the will of August 26, 1915, holding that that will was void and not the last will and testament of Xarifa J. Faling, on the ground that, at the time of the execution thereof, she was not of sound and disposing mind and memory, and that the will of August 25, 1911, with the codicils thereto, constituted the last will and testament of Xarifa J. Faling, and should be admitted to probate.

Petitioners aver that Strong and Mead then filed a petition for rehearing, and allege the disposition thereof by this court. They further aver that Strong and Mead expended a sum of money aggregating over $75,000 in their endeavor to prevent the property from coming into the hands of the rightful legatees; that the litigation whereby the fund was preserved was conducted and carried to a conclusion by these petitioners for the benefit of all the rightful beneficiaries thereof; and that the interests of all legatees were promoted thereby. They aver that one-third of the estate is a reasonable fee to be allowed the petitioning attorneys, and that the beneficiaries under the will of 1911 and codicils had at all times full knowledge that, in the event of the successful conclusion of the will contest, the petitioners should receive one-third of the estate as a reasonable fee, and that the beneficiaries at no time objected to the amount claimed by petitioners, and have accepted the benefit of petitioners' endeavors. It is further averred that the compensation of the petitioners was wholly contingent upon their success in the litigation--

"That compensation amounting to one-third of the value of the fund so rescued and recovered by your petitioners from the wrongful claimants as aforesaid is reasonable compensation and a reasonable sum and share to be allowed for the time, expenses, services and results accomplished by themselves and their associate attorneys; that they have received nothing on account thereof, and your petitioners claim a first and prior lien therefor upon all of the said fund.

"Wherefore your petitioners pray for a decree of this court as follows:

"(1) That your petitioners have allowed as compensation for their professional services and those of their associate attorneys in this cause and for disbursements in and about the prosecution of this cause, and in the production and creation of the said fund for its proper owners, one-third of the said fund produced, and that the said one-third thus awarded to your petitioners be declared to be a first and prior lien thereon, and that the same be deducted, allowed, and paid prior to any and all other claims, and before any of the beneficiaries under the said will of 1911 be permitted or allowed to partake of or share in any of the said fund.

"(2) For such other and further relief as to the court may seem meet and equitable in the premises."

The Children's Home formerly known as "The Home," with leave of the court, filed an amended answer, admitting much of the matter contained in appellants' petition, qualifying it in part, denying still other portions, and alleging as a further and separate defense, among other things--

"That the will of 1911 which has been decreed to be the true and genuine last will and testament of Xarifa J. Faling, deceased, was produced and proved by the proponents of the 1915 will, and that said will of 1911 and the evidence proving the same were adduced under the repeated and strenuous objection of the contestants, for whom the petitioners herein did then and do now appear."

The answer averred that the petitioners applied to the Board of Trustees, the governing body of the Children's Home, for authority to carry on the will contest in their behalf, and to contract with them for a contingent fee; which application the Children's Home, through its board of trustees refused. Further:

"That neither the Children's Home nor the petitioners did or could, at any time, understand that the Children's Home accepted the services of the petitioners or was in any way or to any extent under obligations of any nature to the petitioners; that, in connection with the estate of Xarifa J. Faling, the Children's Home has been represented by counsel of its own selection, and filed its answer to the petition in intervention of Frances Gray et al. hereinafter mentioned; that, in connection with said estate, the petitioners have never been employed by or authorized to...