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Estate of Kerr

November 4, 1996

ESTATE OF MARY MARGARET KERR, DECEASED, SUSAN RUEGG, APPELLANT,
v.
STACY BENNETT, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARY MARGARET KERR, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-4-00169-3. Date filed: 07/28/95. Judge signing: Hon. James W. Bates JR.

Petition for Review Granted April 2, 1997,

PER CURIAM -- Susan Ruegg was ordered to pay attorney fees to the estate of her mother, Mary Margaret Kerr, after unsuccessfully petitioning the court to remove the personal representative of the estate. Ruegg argues the award of attorney fees was contrary to the applicable statutory law. We agree, accelerate review under RAP 18.12, and reverse the award of attorney fees.

Kerr died in 1995. Kerr's will included specific bequests to each of her five grandchildren, including Stacy Bennett, who is Susan Ruegg's daughter and who was named personal representative in the will. Ruegg is the remainder beneficiary under the will.

Ruegg petitioned to have Bennett removed as personal representative and replaced with an "independent" administrator, arguing that Bennett had breached her fiduciary duties to Ruegg as the remainder beneficiary. The record includes numerous affidavits and declarations evidencing great animosity between Ruegg and Bennett, with mutual accusations of lying and other misconduct.

A Superior Court commissioner granted the motion to remove Bennett as personal representative. On a motion for revision, the Superior Court reversed the commissioner's ruling and reinstated Bennett as personal representative. On the estate's motion, the court also ordered Ruegg to pay attorney fees and costs under the authority of RCW 11.96.140. *fn1 Ruegg appeals only the award of attorney fees and costs.

Relying on Bentzen v. Demmons, 68 Wash. App. 339, 842 P.2d 1015 (1993), Ruegg argues an award under RCW 11.96.140, a general fee provision for probate matters, was improper because it is contrary to the fee provision in RCW 11.68.070, *fn2 the removal statute. She also argues the award is contrary to the policy of the latter statute because an award against a losing petitioner would "chill a beneficiary's ability to protect the estate" from improper conduct by the personal representative.

We find these arguments persuasive. This court reasoned in Bentzen that the more general fee provision in RCW 11.96.140 does not apply where another, specific section of the probate code has its own fee provision.

Bentzen, 68 Wash. App. at 349-50 n.1. We conclude that the provision of attorney fees in the removal statute, RCW 11.68.070, should govern in this case.

This statute ostensibly addresses only the case where a petitioner succeeds in restricting the powers of the personal representative: "In the event the court shall restrict the powers of the personal representative in any manner, . . . in all such cases the cost of the citation, hearing, and reasonable attorney's fees may be awarded as the court determines." The plain language of the statute does not provide for fees in the event of an unsuccessful petition. To the extent that its applicability is doubtful in this case, we may refer to the maxim of expressio unius est exclusio alterius to determine legislative intent. The maxim declares that when a statute specifically designates the things or classes of things upon which it operates, it can be inferred that the Legislature intended to exclude any omitted matters. State v. Williams, 94 Wash. 2d 531, 537, 617 P.2d 1012, 24 A.L.R.4th 1191 (1980).

In this case, the statute allows attorney fees only where the court decides to restrict the powers of the personal representative. Omitting mention of an unsuccessful petition indicates the intent to exclude attorney fees in such cases. Because the statute does not allow for fees in case of an unsuccessful removal petition, the court in this case had no authority to award fees to the estate.

We believe this result is consistent with the policy underlying nonintervention wills. The Legislature has evidenced an intent to restrict court involvement in administration of nonintervention wills. In re Estates of Aaberg, 25 Wash. App. 336, 343, 607 P.2d 1227 (1980). Allowing attorney fees to successful challengers rewards the use of the petition as a check on the conduct of a personal representative who otherwise operates with limited court involvement. Conversely, ordering a losing petitioner to pay attorney fees could have a chilling effect on the use of this safeguard. *fn3 Of course, our holding does not foreclose the possibility of sanctions for a frivolous petition under CR 11 in the appropriate case.

Because we conclude the award of attorney fees below was error, we deny Bennett's request for attorney fees on appeal. The order and judgment awarding ...


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