Law's Estate, In re

• Citation: 113 N.W.2d 233,253 Iowa 599
• Decision Date: 06 February 1962
• Docket Number: No. 50505,50505
• Parties: In re ESTATE of Ede E. LAW, Deceased. Burt G. LAW and O. B. Law, Objectors to Will, Appellants, v. Elizabeth L. BAILEY, Andrew H. Law and Mason G. Ouderkirk, Proponents of Will, Appellees.
• Court: United States State Supreme Court of Iowa

Page 233

113 N.W.2d 233

253 Iowa 599

In re ESTATE of Ede E. LAW, Deceased.

Burt G. LAW and O. B. Law, Objectors to Will, Appellants, v. Elizabeth L. BAILEY, Andrew H. Law and Mason G. Ouderkirk, Proponents of Will, Appellees.

No. 50505.

Supreme Court of Iowa.

Feb. 6, 1962.

Watson, Elgin & Hoyman, Indianola, and Killmar & Reynoldson, Osceola, for appellants.

Charles D. Funaro, Hansen, Wheatcraft & Galvin, Des Moines, and Mason G. Ouderkirk, Indianola, for appellees.

LARSON, Justice.

Mason G. Ouderkirk, the nominated executor in the will of Ede E. Law, deceased, filed an application to employ legal counsel, for attorney fees and costs to secure a witness from California, medical testimony, and the taking of depositions to sustain the will. Appellants resisted on the ground that all devisees and heirs of decedent were adults and all had appeared and pleaded pro or con in the contest. The trial court approved the application to employ legal counsel and ordered 'The reasonable cost of the necessary services of said counsel to be paid from the assets of the decedent's estate regardless of the result of the will contest, * * *.'

The court also sustained a motion to strike certain allegations from the appellants' objections to probate. Our permission having first been secured, appellants appeal from both rulings.

The questions presented by this appeal are whether the trial court erred (1) in sustaining the motion to strike, and (2) in approving Ouderkirk's application to employ counsel to sustain the will and to obligate the estate to pay reasonable costs and attorney fees regardless of the result of the will contest.

The following is a brief statement of the existing circumstances disclosed by the record.

A document written in longhand by Ouderkirk purporting to be Ede Law's will, dated December 30, 1954, was filed by him in the Warren County District Court July 15, 1959.

Ede E. Law, a widow, residing in Indianola, Iowa, died July 12, 1959, at the age of 93 years. She was survived by four adult children, Burt G. Law and O. B. Law, objectors herein, and Andrew H. Law and Elizabeth Bailey, who are proponents of the will. They are her sole and only heirs at law, and no bequest was made to any other party.

On September 4, 1954, Andrew Law had obtained and recorded a deed from his mother for a 280 acre farm in Warren County. On September 28, 1954, at Ede Law's request, O. B. Law was appointed guardian of her person and property and so acted until her death. On October 28, 1954, he, as guardian of Ede, brought a suit in equity to set aside the deed to Andrew Law. Upon trial of that matter Ede was found to be of unsound mind on the date of its execution and the deed was set aside.

Ede's purported will took cognizance of that conveyance to Andrew, charged him with its value, and then divided the property equally between Elizabeth and Burt.

On July 23, 1959, Burt and O. B. Law filed their objections to probate. Elizabeth Bailey filed her answer to the objections on August 3, 1959. On August 7, 1959, Andrew Law filed a separate resistance and answer to the objections. Objectors then took discovery depositions of Dr. Trueblood and Mason G. Ouderkirk on September 19, 1959. Attorneys appeared for both Mr. Ouderkirk and Andrew Law at that time. On October 3, 1959, the objectors took discovery depositions of Elizabeth Bailey and again attorneys appeared for Ouderkirk and Andrew Law.

On October 12, 1959, Ouderkirk also filed a motion to strike paragraph 7 from appellants' objections, and the court's ruling thereon raises one of the questions in this appeal. O. B. and Burt Law resisted that motion and objected to Ouderkirk's application to employ counsel. On August 29, 1960, proponents Ouderkirk, Elizabeth Bailey, and Andrew Law took discovery depositions of O. B. Law. On the same date Ouderkirk's application to employ counsel, and his motion to strike, were orally presented to the court, and its ruling was rendered on August 30, 1961. We shall consider these alleged errors in the order of their importance.

I. Appellants contend the court's approval of Ouderkirk's application to employ counsel in an effort to sustain the will, was error for two reasons: (1) that he, as the named executor, was not shown to be the real party in interest, and (2) that the order was premature. We agree that the order was premature under the circumstances disclosed by this record.

Generally speaking, no positive or dogmatic pronouncements upon the question as to when a nominated executor may legally obligate the estate for expenses or attorneys fees in an effort to probate or sustain a will, are wise or possible. The extent of his duty depends upon the peculiar circumstances of each individual case. In other words, the circumstances must reveal a just cause for such expenditures. In re Estate of Swanson, 240 Iowa 1011, 1016, 38 N.W.2d 652; Butt v. Murden, 154 Va. 10, 152 S.E. 330, 69 A.L.R. 1048; Ann. 40 A.L.R.2d 1409. It is stated in section 104, Model Probate Code, by Simes, page 120: 'When any person designated as executor in a will, or the administrator with the will annexed, defends it or prosecutes any proceedings in good faith and with just cause for the purpose of having it admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements including reasonable attorney's fees in such proceedings.' (Emphasis supplied.)

Although on occasions we have stated it was the duty of the named executor in a will to offer it for probate and make all reasonable efforts to sustain its validity when contested, in all those cases we found that duty was affected by the circumstances which had reasonably required or justified his active participation in the matter in the interest of the estate. In re Estate of Hayer, 233 Iowa 1343, 1350, 11 N.W.2d 593, 597; In re Estate of Swanson, supra.

On the other hand, where the circumstances revealed that all the parties in interest were voluntarily before the court and had joined issue as between themselves, we have held there was no substantial estate interest left and thus no just cause for the nominated executor to incur expenses or attorney fees in the contest. In re Estate of Berry, 154 Iowa 301, 134 N.W. 867; Kirsher v. Kirsher, 120 Iowa 337, 94 N.W. 846; In re Estate of Smith, 165 Iowa 614, 146 N.W. 836; In re Estate of Austin, 194 Iowa 1217, 191 N.W. 73; In re Estate of Burgin, 191 Iowa 898, 899, 183 N.W. 803. In the latter case it was pointed out that each heir or legatee is deemed to be litigating in his own interest and at his own expense, and where no special interest of the estate appears, expense to the estate usually is not justified. We recognized in such cases that to allow the proponents, directly or indirectly, such fees as estate costs regardless of the outcome of the contest, often would unjustly compel the contestant to share in the cost of attorney fees of the party determined to be wrong. It was only in cases where there appears just cause that we have approved as estate expense attorney fees for the nominated executor. In the Swanson case where the executor had appealed from a district court approval of a 'family settlement', attorney fees were not allowed for the appeal to us for the reason that no just cause then appeared to continue the contest. Thus, where the contest is narrowed down to one of personal interest only between proponents and contestants, attorney fees incurred by the nominated executor in the contest have not been allowed, indicating, at least while those conditions exist, there was no just cause for incurring attorney fees at the expense of the estate. In re Estate of Berry, supra; In re Nicholson, 123 Iowa 630, 99 N.W. 300; Howard v. Smith, 78 Iowa 73, 42 N.W. 585; Allen v. Seward, 86 Iowa 718, 52 N.W. 557. Both the Berry and Burgin cases were recently cited with approval in the case of In re Estate of Jenkins, 245 Iowa 939, 941, 65 N.W.2d 92. Also see cases listed in Ann. 40 A.L.R.2d 1409; 40 Iowa L.Rev., comment p. 524.

When special estate interests are disclosed or just cause appears, we have usually approved attorney fees for a nominated executor's effort to sustain the will by active participation in the contest. In re Estate of Swanson, supra; In re Estate of Hayer, supra.

II. True, it is not always possible to determine prior to the litigation whether the interests of the estate involved are so distinct and different from the strictly personal interests of the proponents and the contestants to justify a nominated executor's active participation. Appellee Ouderkirk desired to resolve...