12 Mass. App. Ct. 908

July 7, 1981

On the ground that the services rendered by the petitioner conferred no benefit upon the estate, a probate judge dismissed, as a matter of law, a petition for counsel fees and expenses incurred in behalf of proponents and named coexecutors of a will which was disallowed. It has been consistently held that in order for counsel fees and expenses to be fixed and determined by a probate judge under G. L. c. 215, Section 39A, the attorney must show that his or her services "conferred a benefit upon the estate, and `benefit conferred' means assistance in `creating, preserving or increasing the estate.'" Lane v. Cronin, 345 Mass. 52 , 54 (1962), quoting from Miller v. Stern, 326 Mass. 296 , 304 (1950). A benefit is not conferred on an estate when a lawyer attempts to probate a document which

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is not accepted as a valid will. Lane v. Cronin, supra at 54. The fact that the proponents of the will were named coexecutors in the offered document does not change the settled law. Id. at 54 (custodian of invalid will by presenting it for probate does not confer a benefit upon the estate). The policy reasons enunciated in the cases involving G. L. c. 215, Section 39A, apply with equal force to this application for fees, under G. L. c. 215, Section 45. Karvonen v. Halmetoja, 7 Mass. App. Ct. 855 (1979).

Decree affirmed.