Unger's Estate, Matter of, 129465

• Decision Date: 16 November 1981
• Docket Number: No. 129465,129465
• Citation: 636 P.2d 436,54 Or.App. 713
• Parties: In the Matter of the ESTATE OF Lena L. UNGER, Deceased. Marjorie HURD, Tina Mashino, Dale Mosby, George Mosby, Lou Mosby, Walter Kenneth Mosby, and Irene Woodley, Respondents, v. Richard G. MOSBY, Personal Representative, Appellant. ; CA A20401.
• Court: Oregon Court of Appeals

Page 436

636 P.2d 436

54 Or.App. 713

In the Matter of the ESTATE OF Lena L. UNGER, Deceased.

Marjorie HURD, Tina Mashino, Dale Mosby, George Mosby, Lou

Mosby, Walter Kenneth Mosby, and Irene Woodley, Respondents, v. Richard G. MOSBY, Personal Representative, Appellant.

No. 129465; CA A20401.

Court of Appeals of Oregon.

Argued and Submitted Aug. 28, 1981.

Decided Nov. 16, 1981.

Don V. Wallace, Portland, argued the cause and filed the briefs, for appellant.

James R. Cartwright, Portland, argued the cause and filed the brief, for respondents.

Before BUTTLER, P. J., and RICHARDSON and WARREN, JJ.

BUTTLER, Presiding Judge.

Appellant is the personal representative and sole beneficiary under a 1976 will of Lena L. Unger, deceased. He successfully defended that will in the circuit court against a claim by respondents that the decedent lacked testamentary capacity. On de novo review in this court, we reversed, concluding that the testatrix lacked testamentary capacity at the time the will was executed. Hurd v. Mosby, 47 Or.App. 951, 615 P.2d 1115 (1980).

On remand, appellant petitioned the probate court for payment from the estate of attorney fees and costs he incurred in the contest at the trial level. Respondents objected and the trial court, without stating any reason, concluded that appellant was not entitled to have those fees and costs paid out of the assets of the estate. From the judgment denying appellant's request for attorney fees, he appeals.

ORS 116.183(2) provides:

"(2) A personal representative who defends or prosecutes any proceeding in good faith and with just cause, whether successful or not, is entitled to receive from the estate his necessary expenses and disbursements, including reasonable attorney fees, in the proceeding."

By the terms of the statute, the personal representative's defense of the will must have been "in good faith and with just cause" in order for him to be entitled to payment of fees and expenses from the estate. ¹ The trial court's findings and conclusions did not deal with that requirement. Respondents contend that, in any event, a personal representative who is the sole beneficiary under the will is not entitled to recover from the estate attorney fees incurred in an unsuccessful defense of the will.

If the trial court here based its conclusion that the personal representative was not entitled to attorney fees because he acted in bad faith or without just cause in defending the will, then the denial of attorney fees was proper. If, however, the court denied appellant's request on the ground that he was the sole beneficiary under the will, that was error. A personal representative, whether a beneficiary or not, has a fiduciary duty to defend what he honestly believes to be the valid last will of the decedent. As the court stated in Hunter v. Craft, 287 Or. 465, 469, 600 P.2d 415 (1979), quoting In re Shepherd's Estate, 152 Or. 15, 42-43, 41 P.2d 444, 49 P.2d 448 (1935):

" 'Under the procedure which has been adopted and followed in this state the duty is imposed upon the executor after the will has been probated in common form to defend it against attack when he has reasonable ground to believe the will valid; and in such instances it has been the common practice of the court to allow to the executor, whether successful or unsuccessful, if he acts in good faith, the reasonable expense incurred in such defense, including attorneys' fees. * * * The fact that he was a beneficiary under the will did not lessen his duty or his right as executor to have such expense paid out of the estate.' " (Emphasis supplied.)

Respondents rely primarily on In re Lobb's Will, 177 Or. 162, 160 P.2d 295 (1945), for the proposition that a personal representative who is the sole...