IN RE: MARRE'S ESTATE. (1940)

This appeal, transferred from the Supreme Court to this court for decision, pursuant to the provisions of article VI, section 4c of the Constitution of the State of California, is from an order of the superior court sitting in probate, denying appellant's petition for an order allowing him attorney's fees as part of “his proper care, maintenance, and support” under the provisions of a testamentary trust.

The essential facts are:

After directing distribution to Henry L. Minetti and Isidore B. Dockweiler of all of the rest, residue, and remainder of her estate in trust, the will of decedent contained, among others, the following provisions:

“(c) From the rents, issues, profits, interest and dividends of said trust estate said trustees shall pay all taxes, assessments and other charges imposed by public authority on the property of said trust estate or any part thereof, all income taxes on the income thereof, all expenses of upkeep, maintenance, protection and insurance of said property, and all other proper costs and expenses of the administration of said trust; and all income remaining after such payments is hereinafter designated ‘net income’.

“(d) Said trustees shall during the existence of said trust, either monthly, quarterly or semi-annually, as the circumstances and conditions of said trust estate will the most conveniently permit, but in any event annually, distribute and pay out of the net income of said trust estate such part thereof as said trustees shall in their sole judgment deem advisable to or for the proper care, maintenance, support and education of my said grandson Stephen Milton Piuma so long as, in their sole judgment, his education is incomplete, and the balance, if any, of said net income to my daughter Rosa J. Marre Piuma; and when, in the sole judgment of said trustees, the education of my said grandson is complete, then said net income shall be distributed and paid out as follows: One-half (1/212) to or for the proper care, maintenance and support of my said grandson Stephen Milton Piuma, and one-half (1/212) to or for the proper care, maintenance and support of my said daughter Rosa J. Marre Piuma; provided, that if my said daughter Rosa J. Marre Piuma should die *

“(e) In the event that said net income be at any time insufficient for the proper care, maintenance, support and education of my said grandson Stephen Milton Piuma, or for his proper care, maintenance and support, or for the proper care, maintenance and support of my said daughter Rosa J. Marre Piuma, then I hereby authorize, empower and direct my said trustees hereunder to use from time to time so much of the principal of said estate as may in their sole judgment be necessary or proper for such care, maintenance, support and education or such care, maintenance and support of my said grandson, or for such proper care, maintenance and support of my said daughter.”

The sole question necessary for us to determine is:

Under the provisions of decedent's will above quoted, should the trial court have allowed appellant a reasonable sum as attorney's fees incurred subsequent to decedent's death and prior to the decree of final distribution, which fees were incurred in an endeavor to collect sums of money he claimed to be due him under the terms of decedent's will?

This question must be answered in the negative. In a companion appeal to this case entitled In the Matter of the Estate of Angela F. Marre, Piuma v. Minetti et al., 108 P.2d 691, which we have this day decided, we held that appellant herein was not entitled under the provisions of the will to any payments prior to the date of the decree of final distribution. Such being the case, it is obvious that he is not entitled under the terms of the will to attorney's fees incurred in an endeavor to collect such payments.

For the foregoing reasons the portion of the order here appealed from is affirmed, respondents to recover their costs.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.