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In re Balke's Estate

Supreme Court of Arizona

May 23, 1949

In re BALKE'S ESTATE.
v.
CIEPLAK BYRD

Page 733

Appeal from Superior Court, Maricopa County; Henry C. Kelly, Judge.

Proceeding in the matter of the estate of Rudolph Luis Balke, deceased, by Louie M. Byrd, as executor, for a final accounting and distribution, wherein Stefan Rogozinski, as acting Consul General of the Republic of Poland, filed objections. From that portion of an order and amended decree of distribution directing payment out of funds of the estate for fees for the attorneys who represented the Consul General, the executor appeals, and from another portion of the same order and decree, the Consul General cross-appeals. The Supreme Court granted a motion to substitute Marian B. Cieplak as Consul General, and the Consul General moved to dismiss the executor's appeal.

Motion to dismiss denied, order allowing attorney's fees reversed, and order and decree complained of on cross-appeal reversed and set aside with directions.

Struckmeyer & Struckmeyer, of Phoenix, for appellant and cross-appellee.

Rawlins, Davis, Christy & Kleinman, of Phoenix, and John L. Gust of Phoenix, of counsel, for appellee and cross-appellant.

Udall, Justice. Stanford and De Concini, JJ., and Johnson and Thalheimer, Superior Judges, concurring. Chief Justice LaPrade being ill and Justice Phelps having disqualified, the Honorable J. Mercer Johnson, Judge of the Superior Court of Pima County, and the Honorable Walter J. Thalheimer, Judge of the Superior Court of Maricopa County, were called to sit in their stead.

OPINION

Udall, Justice.

Page 734

[68 Ariz. 376] We are here concerned with both an appeal and a cross-appeal in this estate matter. Louie M. Byrd, as executor of the estate of Rudolph Luis Balke, deceased, (hereinafter referred to as executor or Byrd) has appealed from that portion of an order and amended decree of distribution entered in the superior court of Maricopa County on September 30, 1947, directing the payment out of the funds of the estate of attorneys' fees in the amount of $ 7,500 to the firm of Rawlins, Davis, Christy and Kleinman, they having represented the acting Consul General of the Republic of Poland, who appeared on behalf of certain Polish Nationals, legatees under the will of said decedent. The cross-appeal was initiated by appellee Stefan Rogozinski, as said acting Polish Consul, from another portion of the same order and decree. Rogozinski having been relieved of his [68 Ariz. 377] official duties, this court granted a motion to substitute Marian B. Cieplak, Consul General, in his place.

There is before us no reporter's transcript of the testimony taken at the hearings held in the court below. The record here consists merely of those minutes, pleadings, and exhibits which the parties deemed necessary for presentation of their respective appeals. By stipulation these documents were incorporated into a consolidated abstract of record.

Page 735

Executor's Appeal.

We shall first consider and determine the matters raised under the executor's appeal. The sole assignment of error and single proposition of law set forth by executor Byrd are as follows:

"Assignment of Error

"The Court erred in ordering the appellant to pay to the attorneys for the appellee the sum of $ 7,500.00 from the assets of the estate.

"Legal Propositions Relied On

"The estate of a decedent in process of administration is not liable for attorney's fees incurred by individuals, where the attorneys are not employed by the executor or ...


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