In Re Shepherd's Estate , 152 Or. 15 ( 1935 )

The same reasoning which actuated the court in sustaining the widow's objection to the allowance of the payment of any part of the executor's fee from the trust fund created by the decedent for the benefit of the widow is equally applicable to her objection to paying from that fund attorney's fees incurred in the ordinary administration of the estate.

The item of $500 in the final account for attorney's fees does not in any way relate to the additional expense to the estate created by the widow in the litigation instigated by her. If the widow is "entitled to be protected to the full extent of the sum provided by the testator's will" in lieu of dower, she is as much entitled to have the fees of the attorney employed by the executor in the ordinary administration of the estate paid from assets of the estate, other than the trust fund, as she is to receive the full trust fund, undiminished by any part of the executor's fees. The charge for legal advice and service, if allowable at all, is a part of the necessary expense incurred in the care, management and settlement of the estate: § 11-709, Oregon Code 1930. No part of the $500 allowed for attorney's fees should be charged to the fund provided for the widow in lieu of dower. I, therefore, must dissent from so much of the opinion as charges to the widow one-half of these fees.