In re Jolly's Estate

• Decision Date: 25 April 1940
• Docket Number: 27832.
• Citation: 101 P.2d 995,3 Wn.2d 615
• Court: Washington Supreme Court
• Parties: In re JOLLY'S ESTATE.

101 P.2d 995

3 Wn.2d 615

In re JOLLY'S ESTATE.

No. 27832.

Supreme Court of Washington, En Banc.

April 25, 1940

Proceeding in the matter of the estate of Robert Jolly, deceased, in the matter of report by John F. McCarthy, executor originally appointed, to which Thomas Garrett, executor subsequently appointed, filed objections. From a decree allowing fees and expenses, Thomas Garrett, as executor, appeals, and John F McCarthy cross-appeals.

Affirmed.

BLAKE C.J., and MAIN, J., dissenting; and MILLARD, J., dissenting in part.

Appeal from Superior Court, Cowlitz County; Howard J. Atwell, judge.

J. C. McCoy, of Longview, and Thomas Jordan, of Castle Rock, for appellant.

Edgar P. Reid, of Kelso, for respondent.

ROBINSON Justice.

Robert Jolly, a resident of Kelso, Cowlitzq county, died on July 12 1937. A will, executed by the decedent on January 13, 1937, was filed for probate on July 13th by the executor nominated therein, John F. McCarthy, an attorney practicing in Kelso. This will devised the real property, consisting of three lots, to three different devisees. One of the lots was devised to James D. Grose, Jr., a grandson of testator's deceased wife, and he was given the residue of the estate. This would include, among other things, about four thousand seven hundred dollars worth of bonds and postal savings certificates. The instrument was decreed to be the last will and testament of Robert Jolly on July 14th, and it was ordered that letters testamentary be issued to McCarthy, as executor, upon the filing of his oath and a bond in the sum of five thousand dollars.

Prior to his offering the will for probate, Mr. McCarthy had heard a rumor that there was another and later will outstanding, and there is evidence, although directly disputed, that he was definitely informed concerning it on July 13th, the day he filed the will for probate and the day Before the order probating the will and appointing the executor of the estate was entered. Whatever the fact may be about that, it is certain that Mr. McCarthy took no immediate steps to disturb the status quo by qualifying and taking possession of the decedent's property. On August 7th, Thomas Garrett came into the matter by filing a pleading entitled: 'Petition to Revoke Probate of Will and for Probate of a Later Will.' This petition pleaded, and attached as an exhibit, an alleged will of Robert Jolly, purporting to have been executed on May 13, 1937, just four months later tha the will which had already been probated. By its terms, a total sum of four hundred and forty dollars in cash was bequeathed to four several legatees, and all the rest and residue of the estate was devised and bequeathed to Thomas Garrett. The prayer of Garrett's petition was that the probate of the first will be revoked and the will annulled; that the appointment of McCarthy as executor be revoked; that the instrument attached to the petition be admitted to probate; that letters testamentary be issued to the petitioner; and that McCarthy, named as executor in the former will and appointed by the court, and all legatees and devisees named in that will, be cited to show cause why the petition should not be granted. The citation was issued as prayed for.

In response to Garrett's petition and order to show cause, McCarthy and Grose appeared and filed an answer, consisting of denials and, also, of affirmative matter to the effect that Robert Jolly was not competent to make a will on May 13, 1937, and that he was unduly influenced by the petitioner and his wife. The affirmative matter was denied by reply, and the petition to revoke and annul the first will came on for hearing on November 17, 1937. The trial judge called a jury to assist him in the matter, and, at the close of a long trial, after instructing the jury at length, required an answer to the following interrogatory: 'Did Robert Jolly on the 13th day of May, 1937 at the time he signed the will dated that date have mental capacity sufficient to make a last will and testament as defined in the instructions given to the jury?' To this question the jury, on November 24th, answered: 'No.' An alternative motion for judgment notwithstanding the verdict or for a new trial was not disposed of until early in the following April. On April 9, 1938, the court accepted the finding of the jury, giving its reasons for doing so and entering an order, as follows:

'On the question of mental capacity of the said Robert Jolly, deceased, to make a last will and testament at the time he in fact signed said document dated May 13, 1937, purporting to be his last will and testament, as aforesaid, the court feels there are so many elements in the case that he would not be justified in disturbing the finding of the jury and therefore accepts the finding of the jury as to the lack of mental capacity of the said decedent to make his alleged last will on May 13, 1937, Wherefore,

'It is hereby ordered, adjudged and decreed that the petition of Thomas Garrett to annul the will herein dated January 13, 1937, and to revoke the probate thereof, and to revoke the order heretofore made and entered by the Court herein appointing John F. McCarthy as the executor herein, and to admit the alleged last will of said Robert Jolly, deceased, dated May 13, 1937 to probate, and to issue letters testamentary thereon to said petitioner, be and the same is hereby denied and that this action be and it is hereby dismissed. Neither party shall recover costs.'

The will which he had probated and of which he had been appointed executor having thus survived the attempt of Garrett to have it revoked, McCarthy now formally qualified as executor by filing oath and bond in the sum of five thousand dollars. Garrett thereupon appealed to this court. Upon a consideration of the appeal, the court, having in mind the presumptions which favor a will executed in due form, and the kind of evidence and the quantum of proof necessary to show the incompetency of the maker, concluded that the jury's answer to the question put to it by the court was incorrect and that the court erred in accepting its verdict. In re Jolly's Estate, 197 Wash. 349, 85 P.2d 267. The remittitur went down on January 16, 1939.

The filing of this remittitur, of course, brought McCarthy's term as executor to an end. On January 17th, he filed his report in which he set up expenses and disbursements amounting to $130.85. The largest item of this was $50, paid for his qualifying bond; the next in amount was $37.48, for printing his brief on the appeal to this court; the next, the jury fee of $12, on the hearing of Garrett's petition to revoke; the balance is, principally, with the exception of $6.20 witness fees, clerk's fees for filing petition for probate, and other such charges. In addition to reimbursement for these expenditures, McCarthy asked an allowance of $250 as executor's fees, and set up that he had become indebted to Edgar P. Reid for $1,100 in attorney's fees, this total being broken down as follows: Preparation for trial of Garrett's petition, $150; five days' trial, $500; preparation for argument of Garrett's post trial motions and day spent in argument thereof, $200; preparation of brief for supreme court, $150; oral argument in supreme court, $100.

Garrett, in due course, filed objections to each and all of the expenses and disbursements, except the $5 paid for filing the petition to probate the will, and further objected to any allowance whatever with respect to executor's or attorney's fees, on the ground that nothing whatever was done or performed, either by the executor or his attorney, for the benefit of the estate, but all for the benefit of McCarthy and Grose. He also alleged that McCarthy had acted in bad faith in probating the will on July 14th and in subsequently resisting Garrett's petition to have it revoked.

Before the court passed upon this report, Garrett had been duly installed as executor of the estate. After taking testimony and hearing the argument of the parties, the court held that McCarthy had, in all things, acted in good faith and upon reasonable and probable cause, approved the claimed expenditures, held that McCarthy and Grose should be reimbursed out of the estate as to the costs allowed against them in the supreme court, and that McCarthy was justified in employing an attorney to resist Garrett's attempt to revoke the will in which he had been nominated as executor. The court, however, allowed McCarthy $100 as an executor's fee, instead of the $250 as prayed for, and with respect to attorney's fees, $400, instead of $1,100. These findings and conclusions were embodied in a decree and order entered on May 27, 1939. Garrett, as executor, has appealed from that decree and order and in this court contests all the allowances made therein. McCarthy cross-appeals, alleging that the court erred in not allowing him $250 as executor's fees, and $1,100 with respect to attorney's fees.

The appellant contends that the controversy between himself and McCarthy was a will contest, within the purview of subdivision V, entitled 'Will Contests,' of chapter 156, Laws of 1917, p. 646, known as the Probate Code. This subdivision contains five related sections, and they appear in Remington's Revised Statutes as sections 1385-1389, inclusive. The last of these sections relates to costs, and reads as follows: 'If the probate be revoked or the will annulled, assessment of costs shall be in the discretion of the court. If the will be sustained, the court may assess the costs against the contestant, which costs may in the discretion of the court include a reasonable attorney's fee.'

The appellant further contends (1) that, within the meaning of this section, McCarthy was an unsuccessful 'contestant';...