Pedersen v. Johnson

LEVINE, Justice,

concurring specially.

I concur in the result and as much of the rationale that supports the conclusion that the trial court should spell out its reasons for allocating attorney’s fees among all of the beneficiaries. In my view, Hilda Peder-sen received a general devise, not a specific one. Because the order of November 29, 1985 denominated the devise to the other beneficiaries as a residuary devise, I agree that § 30.1-20-02(1), NDCC, would require that the costs of administration be charged first against the residuary devisees before they are assessed against Hilda Pedersen, a general devisee. That appears to leave § 30.1-20-02(2) as the only basis to support the trial court’s allocation of attorney’s fees. Since application of that section is dependent on factual findings, I agree we should require from the trial court some expression of its rationale.