In re Estate of McKinney

10 Citing cases

  1. Estate of Randall

    64 Idaho 629 (Idaho 1943)   Cited 27 times

    In the ordinary will contest the allowance of fees and expenses is within the discretion of the court, but it is an abuse of discretion to allow the proponents' fees and expenses to be paid out of the estate where fraud on the part of the proponents is directly involved. (Sec. 15-228, I. C. A.; In re Jones' Estate, 135 P. 293; Minnesota Loan Trust Co. v. Pettit, et al., 175 N.W. Rep., p. 540; In re McKinney's Estate, 112 Cal. 447, 44 P. 743; Davison v. Sibley, 79 S.E. 855; In re Johnson's Estate, 245 P. 1089.) It is a well settled rule of law that the rental value of the real estate of a decedent used by the executor for his own personal use shall bee charged against him. (Bancroft's Probate Practice, Vol. 3, p. 1622, Sec. 951; Walls v. Walker, 37 Cal. 424; In re Lewis' Estate, 196 P. 341; In re More's Estate, 54 P. 97; In re Laberee's Estate, 269 P. 861; Bancroft's Probate Practice, p. 1622, note 13.)

  2. Estate of Collins

    174 Cal. 663 (Cal. 1917)   Cited 36 times

    When a will has been admitted to probate and the executor is duly appointed and has taken up the administration of an estate, he represents all of the beneficiaries of the will. It then becomes his duty to protect their interests, and as such executor he has the right to oppose a contest of the will until the final decision thereof; consequently, he may maintain an appeal from an adverse judgment in the lower court. ( Estate of Whetton, 98 Cal. 203, [32 P. 970]; Estate ofMcKinney, 112 Cal. 447, 454, [44 P. 743]; Estate of Dillon, 149 Cal. 683, 685, [ 87 P. 379]; Estate of Hite, 155 Cal. 448, 457, [ 101 P. 448]; Estate of Logan, 171 Cal. 357, 362, [ 153 P. 388].) The only question presented in the case is whether or not the evidence is sufficient to support the verdict of the jury that the decedent was not of sound and disposing mind at the time of the execution of the will.

  3. Estate of Logan

    171 Cal. 357 (Cal. 1915)   Cited 13 times

    When by the direct terms of the citation she was required to show cause why the will should not be declared void, she was advised that it was issued to her as a legatee, because in that capacity she was interested in defeating any revocation of it. When, in addition, it advised her, though named generally, that she was called upon to show cause why the order appointing her executrix should not be set aside and her letters testamentary canceled, it was apparent from these matters that the citation was directed to her in her representative capacity. When a will is admitted to probate, it is the duty of the executor to defend and uphold the will against any subsequent attack for its revocation made upon it ( In re Whetton, 98 Cal. 203, [32 P. 970]; In re McKinney, 112 Cal. 447, [44 P. 743]), and this duty primarily rests upon the executor and not upon the legatees or devisees. This being the legal duty of the executor where a citation, as here, not only informed Mary A. McEnerney that a petition had been filed to have it adjudged that the will theretofore probated was void, but further informed her that it was sought to have her letters testamentary issued on such probate set aside and annulled and called on her to show cause why these things should not be done, it sufficiently appeared therefrom that the citation though addressed to her generally was issued to her not only in any individual capacity as a legatee under the probated will which she might occupy, but also in her capacity as executrix of the will itself.

  4. Estate of Jones

    166 Cal. 147 (Cal. 1913)   Cited 17 times

    That costs may properly be refused to one in this position has been directly held in this court. (In re McKinney, 112 Cal. 447, [44 P. 743].) In the case cited, the court below had disallowed the expenditures claimed, and the supreme court, in affirming the order under review, was not required to go further than to hold that there had been no abuse of discretion.

  5. In re Estate of Hite

    155 Cal. 448 (Cal. 1909)   Cited 38 times

    In Henry v. Superior Court, 93 Cal. 569, [29 P. 230], where it was held that until the will had been admitted to probate, or probate thereof denied, the court has no power to appropriate the funds of the estate to aid either proponent or contestant in the matter of attorney fees, witness fees, and other expenses, the court said: "It is safe to assume that parties interested as devisees and legatees will always take the necessary steps and provide necessary funds to procure the attendance of witnesses to establish the validity of a will, if it is worthy of probate." In Estate of McKinney, 112 Cal. 447, [44 P. 743], it appears to have been held that it was within the power of the probate court, in its discretion, to refuse to allow attorney fees in resisting a contest before probate, even though the contest was unsuccessful, and that the action of the court in this regard would not be disturbed unless there had been an abuse of such discretion. In Estate ofWhetton, 98 Cal. 203, [32 P. 970], a contest after probate, it was claimed that the executor had no legal right to support and defend the will, and that his opposition to the petition for revocation could not be considered.

  6. In re Estate of Bump

    152 Cal. 271 (Cal. 1907)   Cited 11 times

    It has been held that when there is a successful contest after probate, the court, in its discretion, may allow to the executors out of the estate, their reasonable costs and expenditures in endeavoring to uphold the will of which they had been appointed the executors. (Estate of McKinney, 112 Cal. 447, [44 P. 743].) Also that where there is a successful contest before probate and the legatees or executors acted in good faith and upon probable grounds in proposing the will for probate, the court may, in its discretion, allow to the unsuccessful proponents their ordinary costs incurred in endeavoring to establish the will, and make the same a charge against the assets of the estate.

  7. Estate of Bloom

    107 Cal.App.3d 195 (Cal. Ct. App. 1980)   Cited 4 times

    (Italics added.) The court has power in its sound discretion to order costs to appointed executors when there is a successful contest after probate ( Estate of McKinney (1896) 112 Cal. 447, 452 [44 P. 743]) and to unsuccessful proponents where there is a successful contest before probate and the legatees or executors acted in good faith and upon probable cause in proposing the will for probate. ( Estate of Dillon (1906) 149 Cal. 683, 685 [ 87 P. 379]; Estate of Olmstead, supra, 120 Cal. at p. 452.)

  8. Estate of Webster

    43 Cal.App.2d 6 (Cal. Ct. App. 1941)   Cited 21 times

    After a will has been admitted to probate and the executor has taken up the administration it becomes the executor's right and duty to protect the interests of the beneficiaries and he has, as such, a right to oppose a contest until final decision. ( Estate of Collins, 174 Cal. 663 [ 164 P. 1110]; Estate of Heydenfeldt, 117 Cal. 551 [49 P. 713]; Estate of Dillon, 149 Cal. 683 [ 87 P. 379]; Estate of Langley, 140 Cal. 126 [ 73 P. 824]; In re McKinney, 112 Cal. 447 [44 P. 743].) The duty of an executor named, before probate, to establish the will and oppose a contest may be questioned.

  9. Adair v. Schnack

    117 Mont. 377 (Mont. 1945)   Cited 22 times
    Concluding that an earlier version of this statute, Section 10047, R.C.M., required that the party who unsuccessfully contests a will must pay attorney fees, but that the party who unsuccessfully defends a will need only pay costs

    In re Briggs' Estate, 219 Mich. 566, 189 N.W. 14, the court, in speaking of attorneys' fees as a part of costs, said that costs referred to meant costs actually taxable and did not give the court authority to order paid, out of the estate, attorneys' fees. McKinney's Estate, 112 Cal. 447, 44 P. 743, is in point with the questions here involved. A petition was filed to admit a will to probate, contest instituted, and the will admitted.

  10. Goodnow v. Parker

    112 Cal. 437 (Cal. 1896)   Cited 16 times

    We think the findings upon the issue of the statute of limitation pleaded by the defendant are justified by the evidence, and that plaintiff's action is not barred.           [44 P. 743] No other questions need be noticed. We find no error which would justify a reversal of the order denying a new trial, and advise that it be affirmed, and that the appeal from the judgment be dismissed.