In re Kesl's Estate
| Decision Date | 23 May 1945 |
| Docket Number | 8528. |
| Citation | 161 P.2d 641,117 Mont. 377 |
| Parties | In re KESL'S ESTATE. v. SCHNACK et al. ADAIR |
| Court | Montana Supreme Court |
Rehearing Denied Sept. 18, 1945.
Appeal from District Court, Sixteenth District, Rosebud County Rudolph Nelstead, Judge.
Proceeding in the matter of the estate of Joseph Kesl, deceased. From an order fixing commissions for Herman Schnack, surviving former executor of the estate of Joseph Kesl, deceased, and another fees for their attorney while acting as executors, costs for unsuccessfully defending a will contest, and attorney's fees for special services in the defense of the will contest Hugh R. Adair, as administrator of the estate of Joseph Kesl deceased, appeals, and the others move to dismiss the appeal.
Motion denied, and other modified and as modified affirmed.
Lester H. Loble, of Helena, and J. J. McIntosh, of Forsyth, for appellant.
W. B. Leavitt, of Miles City, for respondents.
F. F. Haynes, of Forsyth, in pro. per. Silver Bow County Bar Association, amicus curiae.
T. B. Weir, of Helena, amicus curiae.
F. S P. FOSS, District Judge (sitting in place of ADAIR, Justice, disqualified).
This is an appeal from an order fixing commissions for executors who were replaced by an administrator, fees for their attorney while acting as executors of the estate, costs for unsuccessfully defending a will contest, and attorney's fees for special and extraordinary services in the defense of the will contest.
Respondent moved to dismiss the appeal:
1. On the grounds that an appeal can not be taken from a part of an order; and
2. That the transcript on appeal contains only a part of the proceedings in that it omits the petition filed by the former executor and does not contain the evidence adduced at the hearing upon which the order is made.
The notice on appeal recites that the administrator 'appeals from that certain order (referring to the order in question) and particularly that part of said order based upon the petition,' etc.
The order appealed from is easily divisible in that:
1. It is specifically ordered that the administrator pay to the former executor certain commissions; 2. That the administrator pay for legal services performed in representing the executors in the probate of the estate other than the defense of the will contest; that the administrator pay for the costs incurred in the probate of the estate and the defense of the will contest; and
3. That the administrator pay to F. F. Haynes for special and extraordinary services in the defense of the will contest, fees in addition to the regular fees for the probate of the estate. 'Accordingly, we hold that where a judgment is divisible into parts, an appeal will lie from a part of the judgment.' Wills v. Morris, 100 Mont. 504, 50 P.2d 858, 860.
The transcript does contain the petition of F. F. Haynes, attorney, upon which that portion of the order is predicated which is here attacked, the order of the court, and has the necessary and proper certificates.
In Re Dougherty's Estate, 34 Mont. 336, 86 P. 38, 40, a similar question was raised. This court determined what papers or instruments are necessary to complete a transcript on appeal in probate proceedings, saying:
The appeal does not involve questions of evidence or discretion of the court. It is based solely on questions of law; and, in view of the foregoing, the transcript on appeal is sufficient to present the mstter to this court for determination.
The motion to dismiss the appeal is denied.
The merits of the case are not as easily disposed of and involve questions not heretofore decided by this court.
In the month of July, 1943, Schnack, former executor of the Joseph Kesl estate, filed a petition requesting the court to fix and determine commissions due to him and his co-executor for acting as executors of the estate. At approximately the same time, F. F. Haynes filed a petition requesting the court to fix and determine his fees while acting as attorney for the executors in the ordinary probate of the estate, setting forth the services performed by him as such attorney. The petition also requested the court to allow costs incurred by him in probate of the estate and in resisting the contest of the will. In addition thereto he petitioned the court to fix and determine attorney's fees for special and extraordinary services performed by him in defending the contest of the will and in taking an appeal from the judgment revoking the will--all to be paid from the funds of the estate.
The foregoing petitions were duly noticed and came on regularly for hearing. No objections were made to either of the petitions. The appellant, his counsel, and respondents and their counsel were present at the hearing. The court heard testimony in support of the petitions, took the matter under advisement, and, on the 19th day of January, 1944, made findings as follows:
That Joseph Kesl died on the 12th day of July, 1938. Thereafter a document, fair on its face and duly executed by Joseph Kesl as testator in the presence of witnesses, naming the petitioner and Hugh Lynch as executors, was admitted to probate on the 8th day of August, 1938, as the last will and testament of the said Joseph Kesl; that the petitioner, Schnack, and Lynch duly qualified as executors on or about the 8th day of August, 1938, and thereafter performed duties as executors of the estate until the month of November, 1939, when the instrument was revoked; that during the month of May, 1939, a contest was instituted by certain heirs of Joseph Kesl to revoke the order admitting the will to probate on the ground that the decedent was mentally incompetent to make a will at the time it was executed. The executors in good faith resisted the contest. The issues were tried by a jury and thereafter a judgment was entered revoking the order admitting the will to probate and the instrument admitted as the last will and testament of Joseph Kesl declared null and void. Thereafter Hugh Adair was appointed administrator, duly qualified, and Schnack and Lynch delivered the property of the estate to the administrator, the appellant herein.
Schnack and Lynch, executors, employed F. F. Haynes, attorney, the respondent, as their attorney to conduct the necessary proceedings for the probate of the will and all other legal proceedings relating to the management, care, and administration of the said estate; and the executors employed respondent Haynes as their attorney to interpose all available and necessary defenses and to represent the executors in the will contest. Haynes defended the will contest and incurred certain expenditures in defending the said will contest, including witness fees, court costs, preparation of bill of exceptions, transcript on appeal to the supreme court, and a brief on behalf of the executors.
From the foregoing the court ordered, adjudged, and decreed:
1. That the petitions of Schnack and Haynes are granted; that Adair, as administrator of the estate, pay to Schnack for his benefit and the benefit of the estate of co-executor Lynch, deceased, the sum of $500 commissions for services performed by them;
2. That the administrator pay to Haynes as attorney for the former executors the sum of $420 for legal services performed by him in representing the executors in the probate of the estate, other than the defense of the will contest, and the further sum of $500 for costs incurred by Haynes as attorney for the executors in the probate of the estate and the defense of the will contest;
3. That the former executors defended the will contest in good faith and that Haynes, as their attorney, rendered special and extraordinary services in the defense of the action; that the administrator pay to Haynes from the assets of the estate the sum of $1,000 for such special and extraordinary services.
No question is raised as to the sufficiency of the proof on the hearing of the petitions. Neither is there urged a lack or an abuse of discretion on the part of the trial court in making the order determining the amounts directed and authorized to be paid for the services rendered. It is the appellant's sole contention that the court did not have authority to order payment of the costs and the extraordinary services of the attorney in the defense of the will contest.
Disposition of the assets of a decedent is, in Montana, controlled by statute, and the issues in this case must be determined by the statutes relating to probate.
'Necessarily, as the Legislature has provided a complete Code of Probate Proceedings * * *, the jurisdiction of the district court is limited to, and depends upon, these provisions of the Code. In this sense its powers are 'special and limited." Thelen v. Vogel, 86 Mont. 33, 281 P. 753, 756.
'The district court's power when sitting in probate matters is derived from the statute, and it cannot go beyond the provisions of the statute.' State ex rel. Kelly v. Second Judicial District Court, 25 Mont. 33, 63 P. 717, 718.
'The rule has been definitely established that a district court sitting as a court of probate, has only the powers which are...
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