Will v. Nicholson

Bishop, J. In this state tbe matter of tbe allowance to litigants of costs and expenses, including attorney’s fees, \s regulated by statute. There is no authority, therefore, for making an allowance in any given case, save as such may be found in some legislative utterance. Counsel for appellant does not question tbe doctrine thus generally stated. His contention is predicated upon tbe proposition that the proceeding was one for tbe construction of tbe will of John Nicholson, and that such proceeding was made necessary on tbe part of petitioner, in that tbe executrix, herself one of the legatees under tbe will and adversely interested, bad filed a final report wholly ignoring his claim and asserted rights' in tbe premises, and that otherwise no judicial construction of tbe will and determination of such rights could have been bad. Section 3415 of tbe Code is undoubtedly broad enough to authorize tbe payment out of the moneys of tbe estate tbe amount of attorney’s fees incurred by an executrix in a proceeding to' construe tbe provisions of a will. And the argument for appellant is that as be bad a right to have a construction of tbe will, and as tbe executrix failed to act so that lie was compelled to take tbe initiative, such allowance should be made to him as might properly have been made to the executrix. We may conclude that one who prosecutes in lieu of an interested ,or contumacious executrix, especially if done under an order or with tbe sanction of tbe court, and tbe sole purpose being to have a construction of tbe will, may have an allowance for bis costs and expenses in such behalf expended. But as we read tbe record before us, we have no such situation 632 to deal with. In the first place, there was no occasion, in our view, for a construction of the provisions of the will, nor do we understand such to have been the object of the proceedings had. The devise of the testator was to his nephews and nieces. Here was no ambiguity, no uncertainty. The language is plain, and could admit of no controversy as to its meaning. It may well be that a controversy might arise as to the identity of the devisees, and such did arise in this case; petitioner contending that his mother’s right to a share was not cut off by her death; that, on the contrary, such right was continued in him as her heir at law. It was his claim that he was a legatee under the will, and the proceeding instituted by bim could have hut one object, and that was to secure a pronouncement of the court respecting his status as such alleged legatee. Certainly the judgment went no further than to declare, as-a matter of l#w, that petitioner had no interest in the estate, in view of the fact that his mother’s death preceded that of the testator. We think it must be said that the proceeding instituted by petitioner was one solely in his interest and for his benefit, and in no sense in the interest or for the benefit of tbe estate. It follows that the trial court rightly refused to direct the payment of the amount of his attorney’s fees out of the estate. — Ankirmed.