Summary
providing that court's decision to remove fiduciary is reviewed under abuse-of-discretion standard
Summary of this case from Matter of SheridanOpinion
As Modified on Denial of Rehearing Jan. 4, 1972.
John A. Kintzele, Denver, for appellants.
Sherman E. Walrod, Holyoke, Francis A. Benedetti, Wray, for executor and appellees.
SILVERSTEIN, Chief Judge.
This is an appeal from two orders of the probate court involving the Estate of Henry Linker, deceased. The first order denied a petition to remove the Executor de Bonis Non of the Estate, and the second order allowed attorneys' fees to the attorneys for the Executor de Bonis Non. We affirm both orders.
I
THE ORDER DENYING THE PETITION TO REMOVE THE EXECUTOR DE BONIS NON
The facts pertinent here are that the decedent, Henry Linker, left four beneficiaries to his estate; three sons who together are entitled to one-half of his estate, and his widow who is entitled to the other half. The sons jointly filed the petition to remove the executor de bonis non.
The statutory grounds for removal of the fiduciary of an estate are set forth in C.R.S. 1963, 153--10--8(2). The ground relied on by appellants in their petition was that the fiduciary conducted 'himself in such a manner as to endanger . . . person(s) interested in the estate,' namely the petitioners. Our review of the record fails to disclose any material evidence which would support the charge.
'(T)he probate court is vested with full discretion in the area of removal of fiduciaries and its determination on disputed facts will not be disturbed absent a showing of abuse of discretion.' In re Estate of Jefferson, 140 Colo. 347, 344 P.2d 179. No abuse of discretion by the trial court has been demonstrated.
II
THE ORDER GRANTING ATTORNEYS' FEES
The three sons of the decedent object to the granting of the attorneys' fees to appellees Benedetti and Walrod solely on the ground that their services did not benefit the estate, but were solely for the benefit of the widow of the decedent.
The attorneys represented the widow in two actions brought against the three sons of the decedent, individually, and one of said sons, Henry Linker as executor of the estate. The first of these actions, to set aside an antenuptial agreement in which the widow had waived and renounced all claims to decedent's estate, (Linker v. Linker, 28 Colo.App. 131, 470 P.2d 921), did not benefit the estate. The attorneys do not seek to recover fees from the estate for any of the services rendered in this action, and their fee arrangement with their client therein is not material to the issue here.
However, the services rendered by the attorneys in the second action to set aside the graudulent conveyance of two promissory notes, (Linker v. Linker, 28 Colo.App. 136, 470 P.2d 882), operated to the benefit of the estate in the form of a substantial increase in its inventoried assets. The services performed in this capacity are included in the services for which the attorneys sought compensation from the estate. During the pendency of this action Henry was removed as executor and Haffke was appointed executor de bonis non and employed Benedetti and Walrod as his attorneys. The attorneys also sought compensation from the estate for their services in this capacity.
A hearing on the petition for fees was held, and thereafter the trial court found,
'. . . that the services performed by said attorneys have resulted in a substantial increase in the assets of this estate and are therefore beneficial to this estate; that said services were necessarily performed by reason of the failure, refusal or neglect of the former personal representative to take proper action to collect the assets of this estate; that . . . said attorneys are entitled to the allowance out of this estate of fair and reasonable fees for their services increasing the assets of this estate; that said attorneys were obliged to prosecute the original action resulting in increase of estate assets both through this Court and appellate courts and are now engaged in further litigation in several courts in an attempt to facilitate and enforce collection of such assets; that a contingent fee of 33 1/3 percent of any net amount or amounts actually received or collected henceforth by this estate as a result of the services of said attorneys is a fair and reasonable fee for said services.'
The evidence at the hearing and the entire record fully support these findings. As was stated in Proudfit v. Coons, 137 Colo. 353, 325 P.2d 273, 'These are services for the benefit of the estate and may be compensated from estate funds.'
Three other assertions of error were withdrawn by appellants at oral argument, having become moot.
The orders are affirmed.
COYTE and DUFFORD, JJ., concur.