Swanson v. Stockdale (In re Swanson's Estate), No. 47457.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MULRONEY
• Citation: 38 N.W.2d 652,240 Iowa 1011
• Docket Number: No. 47457.
• Decision Date: 05 August 1949
• Parties: In re SWANSON'S ESTATE. SWANSON et al. v. STOCKDALE et al.

240 Iowa 1011
38 N.W.2d 652

In re SWANSON'S ESTATE.
SWANSON et al.
v.
STOCKDALE et al.

No. 47457.

Supreme Court of Iowa.

Aug. 5, 1949.

Appeal from District Court, Emmet County; Fred M. Hudson, Judge.

Appeal from an order allowing attorneys' fees for the attorneys representing the named executors in a will which was held to be superseded by a family settlement agreement. Other issues as to the liability of the unsuccessful contestants and the surety on their supersedeas bond for costs and damages during a former appeal are presented. The opinion states the facts.

Affirmed in part and reversed in part and remanded.

[38 N.W.2d 653]

F. J. Kennedy, of Estherville, Kelleher & Kelleher, of Fort Dodge, for appellants.

L. E. Linnan, of Algona, Leo E. Fitzgibbons, of Estherville, for appellees.

MULRONEY, Justice.

The main question presented by this appeal is the right to an allowance of attorneys' fees to be paid from deceased's estate for services rendered in propounding a will, preparing to defend it against a contest, and resisting a family settlement agreement, in the trial court and supreme court. Both courts held the family settlement agreement superseded the will. See In re Swanson's Estate, Iowa, 31 N.W.2d 385, which recites the history of this estate and which we will often refer to in the course of this opinion as the former appeal.

A short statement of the facts will suffice. The attorneys were employed by L. E. Stockdale and J. E. Stockdale who were nominated as executors in John Swanson's will. They were employed for the purpose of propounding the will for probate. After the will had been filed for probate objections were filed thereto by some of the heirs, and part of the attorneys' services were for preparing to defend this contest. But before trial of the will contest, the heirs and surviving spouse filed what they denominated a family settlement agreement and asked that this agreement be held to supersede the will. The Stockdales, through their attorneys, resisted but the trial court, in an order dated April 23, 1947, upheld the family settlement agreement and ruled that it superseded the will. The same order appointed a son and daughter of deceased as administrators of the estate. The Stockdales appealed to this court. While the appeal was pending the trial court made an ex parte allowance of attorneys' fees for the Stockdales' attorneys and the administrators appealed from this order. This court affirmed the order of April 23, 1947 and dismissed the administrators' appeal from the ex parte allowance of attorneys' fees. (See above citation.) After the decision in this court the trial court made the award to the attorneys representing the Stockdales, in an order which was not ex parte and it is enough to state the issue as to such attorneys' fees is now properly before us. No question is raised as to the amount of the award, the administrator merely contending the trial court erred in making any allowance from the estate in favor of the attorneys. But the main argument of appellants is centered against the allowance of attorneys' fees for services performed subsequent to the filing of the family settlement agreement.

I. In the former appeal of the Stockdales there was a motion in this court to dismiss the appeal by the administrators, appointed after the family settlement agreement was approved, on the ground that the Stockdales had no interest in the subject matter that entitled them to appeal. The argument then made by the administrators was somewhat similar to the argument now made, namely, that the only persons interested were the heirs and beneficiaries who were parties to the family settlement agreement; that the Stockdales had no interest in the estate, of which they were deprived by the settlement agreement, save the possible right to be appointed executors if the will was admitted to probate; and the latter right was insufficient to constitute such an interest in the estate as to warrant their litigating as against all the heirs and beneficiaries.

We did not sustain the motion to dismiss, since we held for the administrators on the merits, but in the course of the opinion we observed, with respect to the rights and duties of nominated executors in a will, that:

‘It was the duty of appellants, (Stockdales) named as executors in the will and

[38 N.W.2d 654]

codicils, to offer them for probate and make all reasonable effort to sustain their validity when contested. In re Estate of Hayer, 233 Iowa 1343, 1350, 11 N.W.2d 593, 597, and citations. We are not prepared to hold, in view of the duty which confronted appellants, they were required to accept the trial court's decision as final.

‘One named as executor in a will may appeal from a judgment denying probate of it. 2 Am.Jur., Appeal and Error, section 193; In re Avery's Appeal, 117 Conn. 201, 167 A. 544, 88 A.L.R. 1154, 1156, 1157, and Annotation 1158, 1171. We are not convinced this general rule is not applicable here.’ 31 N.W.2d at page 391.

In the foregoing opinion we also pointed out that the questions presented on the motion to dismiss the appeal and the merits of that case were ‘closely related’ and we said the administrators were in no manner prejudiced by an affirmance ‘rather than a dismissal of the Stockdales' appeal.’ And we were careful to warn that nothing in the opinion was ‘intended to express any opinion on the question whether appellants' (Stockdales') attorneys may be compensated from the estate for any of their services.’ In view of our holding at that time where the administrators' appeal was from an ex parte order of allowance of attorneys' fees we said: ‘That question (the allowance of attorneys' fees) is not before us.'

It can hardly be said that the foregoing expressions were even dicta supporting the Stockdales' contentions here, and much less that they constituted any adjudication or holding that is decisive of the attorney fee issue now properly before us, or that they are binding upon us on the issue now before us on any theory of the law of the case. As bearing thereon see Mutual Orange Distributors v. Agricultural Prorate Comm., D.C.Cal., 30 F.Supp. 937;Smith v. Board of Education of Ludlow, Ky., 6 Cir., 111 F.2d 573. They were general, and we feel correct, expressions of the legal principles that should govern on the abstract question of the rights and duties of nominated executors in a will, and especially their right to appeal-not their right to have their attorneys compensated from the estate. Contestants in any will contest may have a right to appeal, but a determination that they had that right would not always mean the estate should bear the expense of the appeal in the event of an affirmance. In re Estate of Hartman, 233 Iowa 405, 9 N.W.2d 359. We were not blind to the fairly strong possibility of a second appeal on the attorney fee issue which we were there refusing to review and we were careful to leave that question open, and the administrators' position on that issue unprejudiced by any language in the opinion. Without further reference to the quoted language of this opinion on the former appeal we will now proceed to examine the issue here presented as an original proposition.

II. We can dispose of the question of the right of the Stockdales' attorneys to attorneys' fees for services prior to the filing of the family settlement agreement, quickly. We said in Re Estate of Hayer, 233 Iowa 1343, 11 N.W.2d 593, 597:

‘It was the duty of Danielson, named as executor in the will, to offer the will for probate and to make all reasonable effort to sustain its validity when contested. McElfresh v. McElfresh, 186 Iowa 994, 173 N.W. 259;Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773,7 Am.St.Rep. 489; Blakely v. Cabelka, 207 Iowa 959, 221 N.W. 451. Except in the case of bad faith, the costs thereof would not be taxable against the proponent in the event of failure but would be charged to the estate. In re Estate of Berry, 154 Iowa 301, 134 N.W. 867.'

While there is authority to the contrary, we think the better rule is that the estate's burden for costs may, in the discretion of the trial court, include attorney's fees for the proponent's attorney....