McShane v. Cannon (In re Creighton's Estate)

• Decision Date: 31 January 1913
• Docket Number: Nos. 16,775,16,776.,s. 16,775
• Citation: 139 N.W. 827,93 Neb. 90
• Parties: IN RE CREIGHTON'S ESTATE. MCSHANE ET AL. v. CANNON ET AL. (THOMPSON, ATTY. GEN., ET AL., INTERVENERS). MCCREARY ET AL. v. FURAY ET AL. (THOMPSON, ATTY. GEN., ET AL., INTERVENERS).
• Court: Nebraska Supreme Court

93 Neb. 90

139 N.W. 827

IN RE CREIGHTON'S ESTATE.

MCSHANE ET AL.

v.CANNON ET AL. (THOMPSON, ATTY. GEN., ET AL., INTERVENERS).

MCCREARY ET AL.

v.FURAY ET AL. (THOMPSON, ATTY. GEN., ET AL., INTERVENERS).

Nos. 16,775, 16,776.

Supreme Court of Nebraska.

Jan. 31, 1913.

Syllabus by the Court.

Attorneys, who are duly authorized by parties interested in a fund in controversy to represent them and defend and preserve the fund, are entitled to compensation out of the fund in controversy, at least for such services as resulted in the increase and preservation of the fund.

Application for allowance of attorneys' fees. Application granted.

For former opinion, see 91 Neb. 654, 136 N. W. 1001.Smyth, Smith & Schall, of Omaha (E. Wakeley and Geo. W. Doane, both of Omaha, of counsel), for appellants.

W. D. McHugh, Charles B. Keller, Arthur C. Wakeley, and W. H. De France, all of Omaha, for appellees.

SEDGWICK, J.

After this case was determined in this court (91 Neb. 654, 136 N. W. 1001), Sirs Smythe, Smith & Schall, of Omaha, a firm of attorneys and members of the bar of this state, filed an application in this court for an allowance of attorneys' fees out of the funds involved in the litigation. The attorneys for the executors objected to the allowance, and the matter was presented upon briefs and oral argument.

It appears from the record that these applicants were consulted by parties interested in the charity, whose right under the will was contested. The right of these parties to appear and be represented by counsel was challenged on the ground that they had no financial interest in the bequest, and perhaps for other reasons. The matter was then brought to the attention of the Governor and Attorney General of the state, and they considered that the charity in question was a public charity, and authorized these applicants to appear in the name of the Attorney General of the state to procure a construction of the will favorable to the establishment of the charity. The county court of Douglas county had construed the will against the bequest for the charity; and, an appeal being in contemplation, a proposition of adjustment was submitted to the executors by the collateral heirs of the deceased not named in the will, by which the sum of $75,000 would be devoted to the establishment of the proposed charity. This proposition was by the executors submitted to the county court for instruction as to completing the proposed compromise. In the meantime, an appeal had been taken to the district court from the decision of the county court. The applicants, in behalf of the charity and in the name of the Attorney General, appeared in the district court, and upon trial in that court it was ordered that the executors devote the sum of $75,000 to the proposed charity; and these applicants, believing that the bequest carried a much larger amount, appealed to this court.

Under the decision of this court, the amount secured for the charity was $160,000 and interest thereon, so that, on account of the services of these attorneys, there had been secured for this fund, over and above the amount that could have been realized on the proposed settlement, the sum of $85,000 and interest. It has already been determined in the opinion above cited that the bequest in question established a...