In re Faling's Estate
| Decision Date | 21 October 1924 |
| Citation | 229 P. 694,113 Or. 335 |
| Parties | IN RE FALING'S ESTATE. v. STRONG ET AL. CHILDREN'S HOME ET AL. |
| Court | Oregon Supreme Court |
In banc.
Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.
In the matter of the estate of Xarifa J. Faling, deceased. From a decree settling the final account of Thomas N. Strong and C Lewis Mead, as executors of the alleged will of decedent, and the allowing of attorneys' fees, the Children's Home and the Security Savings & Trust Company, administrator with the will annexed, appeal. Appeal dismissed.
The appellants in this matter have appealed from an order of the court settling the final account of Thomas N. Strong and C Lewis Mead, as executors under the alleged will of Xarifa J Faling, deceased, executed in 1915. The will of 1915 was probated in common form on the 9th day of July, 1917. A contest was filed on August 23, 1917, by one W. Tyler Smith who claimed to be a cousin of the deceased. Certain depositions were taken in October, 1917, and the testimony in chief was commenced on November 12, 1917, and was taken practically continuously from then until June 24, 1918, with an adjournment the latter part of January and early February for the purpose of taking depositions in California. In July 1918, an amended petition was filed by the contestant, who had taken an assignment of two legacies under a prior will, the existence of which was discovered during the contest. Separate contests were instituted by certain additional beneficiaries under the 1911 will, and additional testimony was taken under the amended petitions and the additional contests. Without going over the proceedings in detail, it may be stated that this was probably the most important and longest drawnout contest that has been known in the courts of Oregon. The testimony consumed several thousand pages, and numerous exhibits pertinent thereto would also occupy several thousand pages. At the time of the amendment of the petition in contest here, July, 1918, the Children's Home, the residuary legatee under the 1911 will, was served with a citation and appeared by William L. Brewster and Richard W. Montague, its attorneys, and filed an answer to the effect that the court should proceed to determine the validity of the will in contest. The Children's Home did not make any objections to the validity of the 1915 will, and took no active part in the contest. During the progress of the contest, and after the filing of the amended petitions and the additional contests by the California heirs, application was made by the contestants for the appointment of an administrator, and upon the hearing of this application the Children's Home appeared by its attorneys and stated the position of the home, to the effect that the home was satisfied with Mr. Strong and Mr. Mead as executors, and would abide and await the decision of the court before taking any further steps.
As shown by our opinion in Re Faling's Will, 105 Or. 365, 208 P. 715, the will of 1915 was declared invalid, and the will of 1911 was declared the valid will of the deceased, by which the home became the principal beneficiary.
On the 27th day of May, 1919, an order was duly entered allowing executors Strong and Mead certain compensation. On the 4th day of November, 1922, the executors filed a final report and account covering all of their proceedings as executors of the will of 1915, indicating the total value of the estate received by them originally at $532,091,10, and setting forth that during the five years and four months of their custody of the estate, after paying federal taxes, executors' fees and attorneys' fees, they still had on hand $524,124,98 in live assets. They asked that this account, which covers most of the items in detail, be allowed; that they and their attorneys be allowed final compensation in such sums as to the court might seem reasonable; that these sums be deducted from the assets in their hands; that they be ordered to turn over the balance to the duly appointed, qualified, and acting administrator of the 1911 will of Xarifa J. Faling, and that they be discharged.
The Children's Home appeared by its attorneys, and particularly objected to certain expenses incurred by the executors in defending the validity of the 1915 will, laying especial stress upon the claim of Strong and Mead for the allowance of attorneys' fees. The court overruled all objections, and allowed the claims of Strong and Mead for extra compensation and attorneys' fees, which, in addition to sums theretofore allowed by the court, amounted to the sum of $50,000 attorneys' fees. This decree was rendered on the 31st day of July, 1923. On the 31st day of August, 1923, the home and the defendants Strong and Mead entered into the following stipulation, which stipulation was duly signed by the attorneys:
"It is hereby stipulated by and between the attorneys for the executors, Thomas N, Strong and C. Lewis Mead, and the attorneys for the Children's Home, formerly The Home, and the said executors, Thomas N. Strong and C. Lewis Mead, may make the payments and credits as authorized by the order of the above-entitled court dated July 31, 1923, and that said order be deemed a final order in said cause and that said executors, Thos. N. Strong and C. L. Mead, and the Children's Home hereby waive their right of appeal therefrom."
On the 14th day of August, 1923, the Children's Home filed its petition for the appointment of an administrator, and the Security Savings & Trust Company was duly appointed administrator with the will...
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