Opinion
Decided December 3, 1907.
A legatee who contests the executor's claim of ownership of part of the testator's property may be awarded reasonable compensation for counsel fees and expenses, to be paid out of the funds of the estate; and his right to such remuneration is not dependent upon his success in the litigation.
PROBATE APPEALS. The cases are those reported in 71 N.H. 538 and in 72 N.H. 444, in which the appellees moved for an allowance of counsel fees and expenses. Transferred from the May term, 1907, of the superior court by Peaslee, J.
The appellants are executrices of the estate of John D. Bean, and the property in question was willed to them for life. The remainder was willed to the appellees. Only a part of the latter joined in the employment of counsel. It was ordered that so much of the fees and expenses as should be determined to have been reasonably incurred for the benefit of the fund should be paid by the estate, and the appellants excepted.
Burnham, Brown, Jones Warren, for the plaintiffs.
Mitchell Foster, for the defendants.
As executrices, it was the duty of the appellants to protect and conserve the estate committed to their care. But as they were personally interested in the property in question, claiming adversely to the estate to be the absolute owners of it, the interests of the estate in it were in fact protected by the intervention of one or more of the legatees, the appellees. That such intervention was reasonably necessary and prudent, the result of one of the suits seems to establish. Bean v. Bean, 71 N.H. 538. The result of that suit added to the estate or trust fund certain property which the executrices claimed to own individually. A finding by the superior court that the appellees are equitably entitled to reasonable compensation on this account out of the trust fund presents no error of law. Burke v. Railroad, 62 N.H. 531.
The fact that the appellees did not succeed in the second suit (Bond v. Bean, 72 N.H. 444) does not conclusively show that they may not also be entitled to remuneration from the estate for the expenses incurred therein. It is merely a circumstance bearing upon the reasonableness of the services and the good faith in rendering them for the estate. In legal effect, they represented the estate as much as though they had been the executors of it. Bean v. Bean, 71 N.H. 538, 540.
Exception overruled.
All concurred.