Needham v. Needham

200 P. 346, 34 Idaho 193, 1921 Ida. LEXIS 90

• Court: Idaho Supreme Court
• Decided: July 25, 1921
• Status: Published

Opinions

MCCARTHY, J.

Appellant is the executor of the estate of Kate Needham Halloran, deceased, and he and respondent are the sole residuary legatees under her will. From a decree of the probate court approving the final account of the executor, respondent appealed to the district court. The appeal was later dismissed with respondent’s consent. Appellant filed a claim in the district court for $8.78 expenses and a $50 attorney fee incurred on said appeal, which was disallowed. He then filed the same claim in the probate court which disallowed it on the ground that it had no authority to allow it. On a second appeal the district court remanded the cause with instructions to the probate court to hear it. Upon the hearing the claim was disallowed by the probate court, and upon another appeal this order was affirmed by the district court. In the course of the protracted litigation the claim had increased to $177.53. Appellant’s account prayed that the expenses and attorney fee be allowed and charged against the residuary legacy of respondent, the theory being that they were incurred because of respondent’s appeal. The objections filed by respondent were on the ground that the items sought to be charged were not actual or necessary items of expense against the estate and were not legal charges against it. A demurrer to the objections interposed by appellant was overruled. The district court found that appellant had been liberally paid for extraordinary services, including attorney fees, and that the expenses claimed were not necessarily incurred, and entered judgment disallowing the claim.

The principal point urged by appellant is that the findings of the lower court were not responsive to any issue, because the claim was urged against the residuary share of respondent, and the objection was that it was not a legal charge against the estate. This is too narrow a view to take of the matter. "While appellant asked that the claim be paid out of the residuary share of the respondent on the theory that he had wrongfully taken an appeal, yet it could be allowed only on the ground that the expenses and attorney fee were necessarily incurred by the executor in transacting the business of the estate. Thus it was primarily a claim against the estate. The fact that respondent could be compelled to exonerate the estate, by an order requiring the claim, if allowed, to be paid, out of his residuary share, does not alter its true nature. No particular form of pleading is prescribed by the statutes for an objection to an executor’s account. It is sufficient if the objections be in writing, and point out the matters objected to. (C. S., sec. 7695.) We conelud ' that the issues were broad enough to justify the findings above referred to.

The evidence taken is not before us. Therefore there is nothing to show that the trial court’s findings were not justified.

The judgment is affirmed, with costs to respondent.

Rice, C. J., and Dunn and Lee, JJ., concur.