In the Matter of the Estate of J. W. SULLIVAN, Also Known as JERRY W. SULLIVAN, Deceased.
HOMER R. WOOD and ED. WESTON, Executors of the Last Will and Testament of J. W. SULLIVAN, Also Known as JERRY W. SULLIVAN, Deceased, and FRANK E. FLYNN, Appellees EDWIN L. CARTY, Appellant,
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Messrs. Moeur & Moeur and Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Mr. Frank E. Flynn, Mr. Charles E. McDaniel and Messrs. Norris & Patterson, for Appellee Frank E. Flynn.
[51 Ariz. 56] ROSS, J.
This is an appeal from an allowance to the executors of the estate of J. W. Sullivan of an attorney's fee in defending the will against a contest filed after it had been probated.
The facts, briefly, are: J. W. Sullivan, on or about October 24, 1929, died testate. His will was admitted to probate by the superior court of Yavapai county on December 7, 1929, and letters testamentary were issued to J. A. Cashion, Homer R. Wood, and Ed. Weston, designated in his will as his executors. After the will had been proved and admitted to probate, to wit, on or about February 20, 1930, Daniel J. Sullivan, a brother of the decedent and a legatee under the will, filed in said court a petition contesting the validity [51 Ariz. 57] of the will and asking that the probate be revoked and the letters testamentary canceled.
Prior to June 18, 1930, the executors, who were also legatees under the will, employed Frank E. Flynn, attorney, to defend the will contest. The trial of the contest lasted from June 18th to the 26th, inclusive, and resulted in a judgment sustaining the validity of the will. On May 27, 1936, Flynn filed his motion in said court and cause requesting the court to make an allowance to the executors of $3,000 as compensation for his services in defending the will. He based his motion on the records and files in the matter of the estate and upon his affidavit and the affidavits of two members of the bar as to the reasonableness of the fee.
The appellant, Edwin L. Carty, a creditor of the estate, on October 30, 1936, filed objections to the allowance of the attorney's fee, on the grounds that the estate was not sufficient to pay creditors' claims in full; that the estate did not benefit by the defense of the will contest, the only ones benefiting
being the beneficiaries; and that to allow the fees as a charge against the estate would be making the creditors pay for a service rendered to the beneficiaries.
On December 31, 1936, the court ordered the allowance of the $3,000, less $500 which had already been paid.
The estate located in Rizona inventoried at $406,524.27. Approved claims, together with commissions and other expenses at the time Flynn was employed, amounted to $394,579.41.
On October 5, 1932, the court in its judgment fixing the state inheritance tax, for that purpose reduced the value of the estate by $188,980.33.
When the allowance of the attorney's fee was made, it appeared that the estate was insolvent. The good faith of the executors in employing Mr. Flynn is not [51 Ariz. 58] questioned nor is it questioned that ...