(dissenting)—I cannot agree with appellant’s contention, as stated in the majority opinion, that
“. . . in the absence of its application to the court for a determination of these fees—and there has been none —the probate court is without jurisdiction to determine them, or to either approve or disapprove the amounts paid by appellant to itself or its attorneys.”
If this be the rule, then an executor and an attorney, probating a nonintervention will, might charge any amount they chose without concern for judicial review.
The disposition of this case turns upon the application of RCW 11.68.030 to the facts. The statute provides:
“If the person named in the will fails to execute the trust faithfully and to take care and promote the interest of all parties, then, upon petition of a creditor of the estate, or of any of the heirs, or of any person on behalf of any minor heir, the court shall cite such person to appear before it, and if, upon hearing of the petition it appears that the trust in such will is not faithfully discharged, and that the parties interested, or any of them, have been or are about to be damaged by the doings of the executor, then, in the discretion of the court, administration may be had and required *271as is required in the administration of estates, '. . . ” (Italics mine.)
The trial court’s finding that “the fees claimed and withheld both for the executor and the Attorneys is excessive to the point that this court must assume jurisdiction” serves a dual capacity.
First, it presents a question of law: Under the statute, is the finding sufficient to invoke the discretion of the trial court to assume jurisdiction in probation of a nonintervention will after an order of solvency has been entered? I believe that it is. I do not believe that the trial court abused its discretion in assuming jurisdiction when the pleadings and proof showed that fees, which were almost two and one-half times in excess of the minimum schedule, had been paid from the estate assets.
I do not interpret this conclusion to be in conflict with our decision in In re Holmgren’s Estate, 189 Wash. 94, 63 P. (2d) 504 (1937), where the trial court, in the exercise of its discretion, refused to take jurisdiction. Therein, we said:
“. . . In determining the amount of the attorneys’ fees, there is no fixed standard, other than what is fair and reasonable for the services rendered. In determining this question, of necessity, every case must stand upon its own footing. In re Fetterman’s Estate, 183 Wash. 410, 48 P. (2d) 638.” (p. 97)
In the instant case, the trial court, in the exercise of its discretion under the statute, assumed jurisdiction. I find nothing in the record which convinces me that it abused its discretion.
Second, the trial court’s finding that the fees retained were excessive presents a question of fact. The trial judge observed in his memorandum opinion that he was
“. . . inclined to feel that when an executor accepts employment in Grays Harbor County, it must do so with at least one eye on the fee schedule in effect in the county.”
No practical benefit would result from a further review of the evidence concerning the reasonableness of the fees. It is sufficient to state that the court found that
*272“Testimony of local attorneys is to the effect that the fees claimed and withheld were excessive. The Court has elected to accept their testimony.” (Italics mine.)
There is competent and substantial evidence in the record to support this finding of fact; hence, this court, having only appellate jurisdiction, cannot disturb it.
The judgment should be affirmed.
Mallery, Foster, and Hunter, JJ., concur with Weaver, C. J.