In Re Estate of MacMullen

COSHOW, J. The petition of Labbe for letters of administration of the MacMullen Estate showed on its face that it was presented five days after his death and that he left a daughter living in Multnomah *509 County surviving him. It was error to grant the petition of Labbe for his appointment as administrator. His appointment was not void, but voidable: Ramp v. McDaniel, 12 Or. 108, 115 (6 Pac. 456); In re Owen’s Estate, 32 Utah, 469 (91 Pac. 283, 285). Attorneys’ fees for service rendered in connection with a partial administration of an estate by an administrator acting under an erroneous or a voidable appointment are chargeable against the estate as a necessary expense, if they were rendered in preserving or caring for the property of the estate, and were a benefit to the estate: Section 1290, Or. L.; In re Faling Estate, 113 Or. 6 (228 Pac. 821, 231 Pac. 148); Slate v. Henkle, 45 Or. 430, 438 (78 Pac. 325). This principle was considered and discussed at great length in In re Ealing Estate, above. In the exhaustive opinion of the court delivered by Mr. Justice Brown, he states his conclusion in pages 32, 33 of the official report thus: “Whenever attorneys’ fees are properly chargeable to an estate, it is upon the theory that they were incurred for the benefit of the estate as a whole. The books afford many illustrative cases holding that when a contest is narrowed down to the personal interests of proponents and contestants, claims for attorneys’ fees against the estate should be denied”: Authorities cited. 4 Schouler on Wills (6 ed.), 2528, §§3014-3017; Union Savings Bank & Trust Co. v. Smith, 26 Ohio, C. C. 317; Nave v. Salmon, 51 Ind. 159; Knight v. Hamakar, 40 Or. 424, 431 (67 Pac. 107); In re Ross’ Estate, 179 Cal. 358 (182 Pac. 303); In re Snowball Estate, 156 Cal. 235 (104 Pac. 446). We conceive no way in which the service rendered by the attorneys for Labbe, who are re *510 spondents here, could' have benefited the estate. Labbe had no rights to letters of administration. It was no benefit to the estate for him to remain as administrator or to prevent the appointment of Miss Waller, the daughter of the deceased. The only property belonging to the estate was the insurance policy. No persons excepting the creditors and the personal representatives of the decedent were interested in that property. The amount of the property could not possibly be increased by the litigation conducted by Labbe. The creditors of the estate would be protected under the administration of Miss Waller as thoroughly as under the administration of Labbe. Either was required under the statute to give a bond amply protecting the creditors. So far as the administration of the estate is concerned it is immaterial whether or not Miss Waller lost her right to inherit from her father by her adoption by her stepfather. Both petitions asserted she was his sole next of kin. Her adoption did not annul the laws of nature. She remained her father’s daughter. That question should not have entered into the controversy until the residue of the estate, after satisfying the creditors, was ready for distribution. Whether, under the peculiar circumstances she was the sole beneficiary of the estate could not, and did not, involve the administration of the estate before time for distribution. The services rendered, therefore, by the respondents did not benefit the estate and it was error for the court to have allowed their claim for any amount against the estate. In Upham et al. v. Bramwell, 105 Or. 597 (209 Pac. 100, 210 Pac. 706, 25 A. L. R. 1919), this court speaking through Mr. Justice McCotjrt said: *511 “In all of the cases cited by plaintiff, the party seeking an allowance of counsel fees and costs, had at his own expense either recovered and brought in the court a fund or property that otherwise would have been lost to the creditors or had instituted proper proceedings to save a trust fund already in court from destruction and to restore it to the purposes of the trust, none of which conditions are present in the instant case.” A similar holding was announced in Ford v. Gilbert, 44 Or. 259, 262 (75 Pac. 138). If the attorneys’ fees should have been allowed in the instant case instead of the property of the estate being increased, it would have diminished the amount of the attorneys’ fees and other expense incurred. Labbe was pretending to represent the creditors of the estate in his petition for letters of administration. His conduct in carrying on the litigation against Miss Waller who was entitled to the appointment as determined by the Circuit Court was directly against the interest of the creditors. The question of the reasonableness of the amount allowed the attorneys is not considered here. The order of the Circuit Court allowing the claim of the respondents is reversed and the claim disallowed entirely. Reversed. McBride, C. J., and Brown and Belt, JJ., concur. *512 For the petition, Mr. W. K. Boyal and Messrs. Huntington, Wilson & Hwitington. Contra, Mr. Maurice W. Seitz and Mr. C. D. Christensen. Behearing denied March 16, 1926.