In re Will
| Citation | 99 N.W. 300,123 Iowa 630 |
| Parties | IN RE NICHOLSON WILL, JOHN DOWNING, Appellant, v. ELIZABETH NICHOLSON, Executrix, Appellee |
| Decision Date | 15 April 1904 |
| Court | United States State Supreme Court of Iowa |
Appeal from Allamakee District Court.--HON. A. N. HOBSON, Judge.
THE facts out of which this controversy grows are as follows: The will of John Nicholson, deceased, was probated in September 1898, and Elizabeth Nicholson duly appointed executrix thereof. Said will contained the following among other provisions: "After paying the foregoing amounts, I give and bequeath the balance of my property to be equally divided between all of my nephews and nieces." John Downing the petitioner in this proceeding, is a son and the only heir at law of Mary Fitzpatrick, a niece of John Nicholson, and who died in the year 1883. The said executrix having made her final report, in which said John Downing was not recognized as having any interest in said estate, he filed a petition in the probate proceedings, making the executrix a party thereto, asking that the will be so construed as to entitle him to a share in the distribution of the estate equal to that which would have gone to his mother, had she outlived the testator. The district court granted the order prayed for, but on appeal by the executrix to this court, such order was reversed. The opinion will be found in 115 Iowa 493. It is conceded that the proceeding referred to were prosecuted in good faith by Downing, and that in connection therewith he incurred expenses, including the fees of his attorney, W. S Hart, and the present proceeding is brought to secure an order for the payment by the executrix of the amount of such expenses. The executrix appeared and made resistance, and after a hearing the trial court ordered payment of all taxable costs incident to said litigation, but refused any allowance as for attorney's fees. The petitioner appeals.
Affirmed.
Wm. S Hart for appellant.
D. J. Murphy for appellee.
In this state the matter of the allowance to litigants of costs and expenses, including attorney's fees, is regulated by statute. There is no authority, therefore, for making an allowance in any given case, save as such may be found in some legislative utterance. Counsel for appellant does not question the doctrine thus generally stated. His contention is predicated upon the proposition that the proceeding was one for the construction of the will of John Nicholson, and...
To continue reading
Request your trial
-
Carpenter v. Lothringer
... ... W. Scott, Judge ... This is ... an action for the construction of the wills of William F ... Winecke and Ada B. Winecke, his widow; also to impress a ... trust upon the property left by Mr. Winecke in favor of the ... devisees and legatees under his will. From a judgment and ... decree against plaintiffs, they appeal ... Affirmed ... in part, reversed in part, and remanded ... ... RICHARDS, J., dissenting ... [275 N.W. 100] ... ... Cosson, Stevens & Cosson, of Des Moines, and ... ...
-
Phoenix v. Stevens
... ... 341, 58 I.C.A., at our request the clerk of the court below has certified to us a copy of a judgment entry against plaintiffs and their notice of appeal therefrom. In keeping with our duty to dispose [256 Iowa 434] of appeals on their merits whenever it can be done we will consider the decisive issues raised by plaintiffs. We have done so in some prior cases. See Associates Discount Corporation v. Held, Iowa, 123 N.W.2d 869, 871 and citations. It is a matter of grace rather than right. The rules governing preparation of records and briefs on appeal should be ... ...
-
In re Leighton's Estate
... ... case involves the claims of two firms of lawyers for services ... rendered in the administration of an estate. Certain heirs ... filed objections to said claims. The court allowed the claims ... in a less amount than was sought. Both parties appeal. The ... objectors will be designated as appellants, and the claimants ... as appellees.--Affirmed in part; reversed in part ... ... Affirmed in part; reversed in part ... Smith & Work and Gilmore & Moon, for appellants ... Seneca ... Cornell, McNett & ... ...
-
McNett v. Bonnifield (In re Leighton's Estate)
...See, also, as bearing on the question in a general way, In re Estate of Dalton, 183 Iowa, 1013, 168 N. W. 332;In re Nicholson's Will, 123 Iowa, 630, 99 N. W. 300;Hastings v. Rathbone, 194 Iowa, 177, 188 N. W. 960, 23 A. L. R. 392. Applying this general rule to the instant case, we conclude ......