Filed 1/16/19

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


DON SMITH, JR.,                        2d Civ. No. B281758
                                     (Super. Ct. No. 1485410)
     Plaintiff and Respondent,       (Santa Barbara County)

v.

JOANN SZEYLLER,
Individually and as Trustee,
etc., et al.,

     Defendants and Respondents;

SAMUEL WACHTOR, as
Personal Representative, etc.,

     Objector and Appellant.


JOANN SZEYLLER, as Trustee,          (Super. Ct. No. 1485889)
etc.,                                (Santa Barbara County)

     Plaintiff and Respondent,

v.

DON SMITH, JR., et al.,
     Defendants and Respondents;

SAMUEL WACHTOR, as
Personal Representative, etc.,

     Defendant and Appellant.



DON SMITH, JR.,                        (Super. Ct. No. 16PR00182)
                                         (Santa Barbara County)
     Plaintiff and Respondent,

v.

JOANN SZEYLLER,
Individually and as Trustee,
etc., et al.,

     Defendants and Respondents;

SAMUEL WACHTOR, as
Personal Representative, etc.,

     Defendant and Appellant.


            Don Smith Sr. and Gladys Smith created a family
trust naming their five children as beneficiaries. As is often the
case, upon the demise of the trustors, a dispute arose amongst
the trust beneficiaries concerning the management of the trust
and the distribution of its monetary assets. One of the children,
Joann Szeyller (née Smith), and her husband were the trustees.
Her brother, Don, took issue with their management of the trust
and its accountings. Not all of the siblings, however, participated



                                   2
in the litigation though each was named and given notice of the
proceedings.
       Following five days of trial, the case was resolved by
agreement of the parties with court oversight and approval. The
stipulated settlement included the awarding of $721,258.28 to
Don for attorney and expert fees and costs to be paid from assets
of the trust and its sub-trusts.
       One of the non-participating beneficiaries, Samuel
Wachtor,1 objected contending that the court lacked jurisdiction
to make such an order and to make the award to Don for his
attorneys and expert fees from trust assets. He also contended
the order violated Donna’s right to due process. We disagree.
Here we hold that the trial court properly applied the
“substantial benefit theory,” an offshoot of the “common fund
doctrine,” in making its award of fees from trust assets. We
affirm.
           FACTS AND PROCEDURAL BACKGROUND
                The Family Trust and Its Sub-Trusts
       The beneficiaries of the family trust are Dave Earl (Dave);
Donna Renee (Donna); Arleen Dee Smith Schall (Dee); Joann
Marie Smith Szeyller (JoAnn); and Don Earl Jr. (Don).
       Donna died while this appeal was pending. She suffered
from mental illness until her death in March 2018. Her son,
Wachtor, represented her in the underlying proceedings as her
conservator; in this appeal he represents her estate. For
simplicity, we refer to Donna and to Wachtor in his
representative capacities collectively as “Donna.”



      1Samuel Wachtor is Donna Smith’s son and acted as her
representative.


                                 3
       When Don Sr. died, the trust held about $14 million in
assets including income producing real property. Gladys became
sole trustee and the assets were divided into three new sub-
trusts.2 Gladys retained the power to amend the Survivor’s
Trust. She retained the right to income from all three sub-trusts
and to principal from the Survivor’s Trust sub-trust during her
lifetime. She also had a right to withdraw up to 5 percent of
principal annually from the QTIP and ByPass sub-trusts in
certain circumstances. Upon her death, each sub-trust was to
pass equally to the five children.
       Gladys gradually became estranged from all of her children
except JoAnn, with whom she eventually lived. Gladys amended
the Survivor’s Trust several times. She disinherited Donna and
Dee from the Survivor’s Trust, and gave Dee’s share to JoAnn.
She made specific gifts to JoAnn of a house in Palm Desert, an
undivided half-interest in a house in Big Bear, and all her
personal property. She made JoAnn her successor trustee and,
later, her co-trustee. She named JoAnn’s husband, Edward
Szeyller, as a successor trustee.
       When Gladys died, JoAnn became sole trustee of all three
sub-trusts.3 She appointed Edward to serve with her as co-
trustee of the Survivor’s Trust. The Survivor’s Trust now had
three beneficiaries: JoAnn (50 percent), Don (25 percent), and


      2The sub-trusts are (1) a revocable Survivor’s Trust (39.39
percent of the assets); (2) a Qualified Terminal Interest Trust
(QTIP)(49.90 percent); and (3) an irrevocable ByPass Trust (10.71
percent).
      3The Family Trust named JoAnn and Dee as successor co-
trustees of all three sub-trusts, but Dee renounced the position.



                                4
Dave (25 percent). The QTIP and ByPass Trusts had five:
JoAnn, Don, Dave, Donna, and Dee (20 percent each).
                             The Petitions
      In the months following Gladys’s death, JoAnn and Edward
sold real property owned by the trusts. Learning of this, Don
demanded financial information and trust accountings. JoAnn
and Edward provided accountings, to which Don objected.
      Don filed a verified petition, in which he questioned over
two million dollars worth of expenditures, gambling, and gifts to
JoAnn and Edward from the Survivor’s Trust accounts during the
last years of Gladys’s life. (In re The Smith Family Trust (Super.
Ct. Santa Barbara County, 2015, No. 1485410).) He asked the
court to freeze the trust accounts and remove the trustees and
order them to pay redress for breach of trust. He also sought an
award of attorney’s fees to be paid from all three sub-trusts
which, he alleged, would substantially benefit from his efforts.
      Only JoAnn and Edward responded to his petition. They
alleged that the challenged expenditures, gambling, and gifts
were all within Gladys’s power to spend income as she wished
and were consistent with her habits of many years. They
acknowledged they borrowed $282,000 from the Survivor’s and
QTIP Trusts after Gladys’s death. They used the money to
preserve trust assets and would repay it.
      JoAnn and Edward agreed to freeze trust assets, distribute
$200,000 to each beneficiary before trial, and revise the
accountings. They petitioned for approval of their revised
accountings; Don filed objections. (In re The Smith Family
Bypass and QTIP Trusts (Super. Ct. Santa Barbara County,
2015, No. 1485889).) He also filed a petition for “Financial Elder
Abuse and Disinheritance” in which he raised the same issues
but characterized the alleged conduct as financial elder abuse.



                                5
(In re The Smith Family Trust (Super. Ct. Santa Barbara County,
2016, 16PR00182).)
       The parties served the other siblings with these petitions
and objections. They did not respond. Don’s counsel asked
Donna to become involved in the litigation, but she declined.
                                 Trial
       The court consolidated the petitions and set them for trial.
Don served all beneficiaries with notice of the trial. Donna did
not attend. Dave and Dee were present at times but remained
outside the courtroom, standing by as witnesses.
       On the third day of trial, counsel for JoAnn and Edward
announced that their accountant had prepared new accountings
in response to Don’s concerns. The court stated, “we’re now to the
point . . . where the only thing that really needs to get done is we
need to file the final [revised IRS Form] 706 . . . what everyone
agrees to, or the Court orders, . . . then we need to figure out who
gets the rest of the money and write the checks. I don’t see that
as being a nine-year process that needs to have, you know, new
trustees for purposes of emotional victory, or whatever. I agree,
probably had I had an understanding of this whole case at an
earlier point in time . . . maybe I would have been hot to trot to
remove the trustees, . . . but that’s just how it goes.”
       Don’s counsel said he had “no more money to pay an
accountant” to review the revised accountings. The court
indicated it might “hire a referee” to review them. The next day,
JoAnn and Edward filed and served the revised accountings on
all beneficiaries along with a request for an order approving
them.
       Don questioned the accountant about her revised
accountings. The accountant explained she reassessed principle
and income distributions to correct problems pointed out by Don’s



                                 6
expert. Following her testimony, the court held an unreported
chambers conference.
                Settlement and Order After Hearing
       The next morning, Don, Joann, and Edward announced
they had reached a settlement. After another unreported
chambers conference, counsel put the settlement terms on the
record and the court added its own findings.
       The terms of the settlement provided: JoAnn would pay to
Don a “confidential” sum from her share of the sub-trust
distributions. No other terms would be confidential. JoAnn and
Edward would waive their trustee’s fees. They would pay, on
behalf of the sub-trusts, tax penalties and interest for undisclosed
gifts from Gladys in the last two years of her life. The court
would review their revised accountings and appoint a referee to
complete an amended IRS Form 706 and a final accounting. The
sub-trusts would pay Don’s attorney and expert fees, $721,258.28
comprised of 39.39 percent from the Survivor’s Trust,
49.90 percent from the QTIP Trust, and 10.71 percent from the
ByPass Trust. The sub-trusts would likewise pay Don, JoAnn,
and Edward’s attorney’s fees for work necessary to complete the
accountings and close the sub-trusts, subject to objections and
court approval.
       With respect to Don’s attorney’s fees, the court added its
finding on the record that, “this action by Don Smith, Jr., has
benefitted all of the beneficiaries of the [family] trust, including
himself and [JoAnn and Edward], by acting as a catalyst to the
improved preparation of the accountings.” Regarding fraud, it
said: “[The case] was stopped in the middle of the trial. I didn’t
find any evidence of any conspiracy, or any intentional acts to try
to do poor accountings. I didn’t find the plug number to be




                                 7
fraudulent. It’s just a plug number.4 That’s something that
exists in accounting.”
       Don’s counsel prepared an “Order After Trial” which set
forth the agreement and findings. The court retained jurisdiction
to approve the final accountings and the parties agreed there
would be no distributions pending acceptance of the amended
Form 706.
                     Donna’s Post-Trial Motions
       Although Donna did not participate in the trial, she filed
post-trial motions for a new trial and to vacate the judgment.
She argued that Don did not request the fee award in his
pleadings, it was not supported by any evidence, it was
disproportionate to any benefit to the beneficiaries, and it
violated her right to due process, among other things.
       The court denied Donna’s motions because motions for new
trial are not permitted in probate proceedings (Prob. Code,
§ 7220)5 and it found she forfeited her objections.
                            DISCUSSION
       The court had the equitable power to award the agreed
upon fees to Don under the “substantial benefit doctrine.” Donna
forfeited her objections to the fee award when she did not object
to Don’s petitions and objections.
                         Standard of Review
       We independently review legal issues regarding the criteria
for a fee award, and defer to the trial court’s discretion on how

      4 A “plug” number is sometimes used to reconcile a
discrepancy in a financial statement. (See
http://www.businessdictionalry.com/definition/plug.html.)

      5All further statutory references are to the Probate Code
unless otherwise stated.


                                8
they are exercised. (Pipefitters Local No. 636 Defined Benefit
Plan v. Oakley, Inc. (2010) 180 Cal.App.4th 1542, 1547-1548
[review of award based on the substantial benefit doctrine];
PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [fee
awards in general reviewed for abuse of discretion].) We will
disturb a fee award under the substantial benefit doctrine only if
the “action is clearly wrong and without reasonable basis.”
(Pipefitters, at pp. 1547-1548.)
       Due Process and Approval of the Revised Accountings
      Donna contends the trial court denied due process and
exceeded its jurisdiction when it characterized the settlement
terms as “findings” and when it approved revised accountings
without either 30 days notice to the non-participating
beneficiaries,6 a motion to enforce the settlement;7 a petition to
approve the settlement;8 or a new accounting that includes the
settlement (§ 16062, subd. (a)).9 She contends she was deprived
of an opportunity to present evidence that the settlement was
unfair and only benefitted Don, JoAnn, and Edward. She
contends the probate court unfairly imposed Don’s fees on the
trusts in order to facilitate settlement between Don, JoAnn, and
Edward. We reject her contentions.
      The court had jurisdiction to resolve the dispute between
Don, JoAnn, and Edward over their accountings for the period
from July 2009 through April 2015 because their petitions and
objections framed that dispute. (§§ 1043, 1046.) The court had

6   Section 17203, subdivision (a).
7   Code of Civil Procedure section 664.6.
8   Section 17200, subdivision (b)(5).

9   Section 16062, subdivision (a).


                                      9
jurisdiction to accept or reject the accountings or order them
amended or modified. One of Don’s central objections to the
accountings was that they mischaracterized principal and
income, thereby concealing invasion of principal. The matter was
squarely before the court at the evidentiary hearing of which
Donna had notice. JoAnn and Edward revised the accountings at
trial to re-characterize principal and income in response to Don’s
concerns.
       Donna chose not to participate in the trial and cannot now
second-guess the resolution of Don’s objections. The litigating
parties resolved disputed facts, and the court was bound by that
resolution. (Capital National Bank v. Smith (1944) 62
Cal.App.2d 328, 343 [“A stipulation of counsel at the trial of a
case, agreeing that specified material facts upon essential issues
may be considered as evidence, and that a judgment shall be
rendered accordingly, is binding upon the respective parties
thereto and upon the court.”].)
       This case is unlike those cited by Donna in which lack of
notice deprived courts of jurisdiction. (e.g. Estate of Buckley
(1982) 132 Cal.App.3d 434, 449-450.) Donna does not dispute
that she received notice of every pleading and the evidentiary
hearing.
       Due process did not require the parties to use other
procedures, such as a motion to enforce a settlement or a petition
for approval of a settlement or a new accounting. Had the
petition to resolve the accounting dispute not been contested, the
parties might have settled their differences outside of court and
petitioned for approval of a settlement (§ 17200, subd. (b)(5)) or
moved for judgment on the terms of the settlement (Code of Civ.
Proc., § 664.6). But such procedures were unnecessary because




                               10
the dispute was before the court on properly noticed petitions and
objections.
       The record does not support Donna’s claim that the court
“attempt[ed] sleight of hand.” The only “secret” was the amount
of money JoAnn would pay Don from her own distribution; that
payment could not impact any other beneficiary. Donna quotes
colloquy out of context to suggest that the court knew the
beneficiaries would “be mad,” if they discovered the “secret,
confidential settlement sum,” that was “buried inside of all these
returns,” and that they were not “sophisticated enough to figure
it out on their own,” and that it admonished the litigating parties
to “text them and treat them appropriately.” Her interpretation
is not supported by the record in context. The court used the
quoted language to express its concern that the revised Form 706
would inadvertently disclose the amount of the confidential
payment to Don, its concern that the beneficiary witnesses who
were on call would suffer inconvenience if they were not informed
that trial was over.
       The court said, “I’m concerned about the tax impacts of that
transfer [from JoAnn to Don] and how that transfer is going to
happen.” Counsel explained there would be no tax impact
because it would come from JoAnn’s share into Don’s share before
distribution, as a non-taxable inheritance. The court asked, “You
are going to . . . have that evidenced in [the 706], or it’s going to
be post 706?” Counsel replied that the accountant referee would
decide. The Court asked if counsel would like to have the settling
parties “sign the addendum that ha[d] a number on it that’s
confidential, and not disclose [it] to the other heirs, except in the
recasting of the 706? If they are sophisticated enough to read it,
they might figure [it] out, or something.” The court added, “So
when the 706 is done, in order for there to be no tax impact of the



                                 11
movement of the secret, confidential settlement sum, it’ll get
buried inside of all these returns. If one of your other siblings
wanted to study it like this for $300,000, they could figure it out.
So the idea here is it’s a nondisclosure thing. I met them all, and
they don’t seem like they’re sophisticated enough to figure it out
on their own. It’s none of their business.”
       Intertwined with this colloquy, were the court’s remarks
about letting the beneficiary witnesses know the trial was over.
Dee and Dave were on call as witnesses and had been driving
long distances to wait to testify. The court said, “The other
beneficiaries were going to be witnesses, and they were sent
away, and they are going to need to be told that the trial is over,
whatever.” Don’s counsel agreed to “text them the case is over,”
and “[t]hey don’t need to come back to court.” Later, the court
said, “[I]t’s totally up to you to text them and treat them
appropriately, so they know they don’t have to come back.
Because if they come back here next Monday and say, ‘Hey,
Judge, why didn’t you call me up?’ they’ll be mad and you’ll have
problems, so please take care of that.”
                        Authority to Award Fees
       Donna contends the court exceeded its jurisdiction when it
awarded fees to Don under the substantial benefit doctrine. She
claimed that because the theory was un-pled and inapplicable,
she had no opportunity to object, and the settlement unfairly
benefited the litigating parties at the expense of the other
beneficiaries. We disagree.
       Trust beneficiaries must generally pay their own attorney’s
fees incurred challenging a trustee’s conduct, even if they
succeed. (Leader v. Cords (2010) 182 Cal.App.4th 1588, 1595;
Code Civ. Proc., § 1021.) But under the substantial benefit
exception, the trial court may exercise its “equitable discretion



                                 12
. . . [to] determine[] whether the interests of justice require those
who received a benefit to contribute to the legal expenses of those
who secured the benefit.” (Pipefitters Local No. 636 Defined
Benefit Plan v. Oakley, Inc., supra, 180 Cal.App.4th at p. 1547.)
The doctrine is an “outgrowth” of the common fund doctrine.
(Serrano v. Priest (1977) 20 Cal.3d 25, 38.)
         The common fund doctrine applies only to pecuniary
benefits; the substantial benefit doctrine applies to both
pecuniary and nonpecuniary benefits. (Serrano v. Priest, supra,
20 Cal.3d at p. 38.) It “permits the award of fees when the
litigant, proceeding in a representative capacity, obtains a
decision resulting in conferral of a ‘substantial benefit’ of a
pecuniary or nonpecuniary nature. In such circumstances, the
court, in the exercise of its equitable discretion, thereupon may
decree that under dictates of justice those receiving the benefit
should contribute to the costs of its production.” (Ibid.)
         Probate courts have used the common fund doctrine to
confer equitable fees awards when litigation creates or preserves
a fund from which others benefit. (e.g. Estate of Reade (1948)
31 Cal.2d 669.) The courts “have applied the ‘substantial benefit’
theory in a wide variety of circumstances” when the benefit is
nonpecuniary. (Serrano v. Priest, supra, 20 Cal.3d at p. 38.) No
published decision applies the substantial benefit doctrine in the
probate context, “but it plainly would apply, for example, . . . to
an action to remove a trustee who has breached the trust or to a
petition to compel an accounting.” (Hartog & Kovar, Matthew
Bender Practice Guide: Cal. Trust Litigation (2018) 15.32[2].)
         The theory was pleaded. Don specifically invoked the
substantial benefit doctrine in two pleadings, each of which he
served on Donna. In his first petition, Don alleged, “the removal
of JoAnn & Edward Szeyller as Trustees and charging them



                                 13
benefits all of the beneficiaries of the trust and [he] therefore
request[ed] that reasonable attorneys’ fees and costs incurred to
remove the Trustees be charged as an expense of the trust and
reimbursed to [him].” Don’s objections to the petition to approve
the revised accountings contained the same allegation and
prayer. Both pleadings cited Hutchinson v. Ghertsch, supra,
97 Cal.App.3d at pp. 615-617. As the Hutchinson court observed,
one of the purposes behind an equitable fee award is “fairness to
the successful litigant, who might otherwise receive no benefit
because his recovery might be consumed by the expenses.”
(Hutchinson, at p. 617, quoting Estate of Stauffer (1959) 53
Cal.2d 124, 132.) Don’s trial brief renewed his request for fees to
be paid from the sub-trusts based on a substantial benefit to all
beneficiaries.
      Donna is correct that Don also requested a fee award
against JoAnn and Edward based on bad faith and elder abuse.
But the court found neither and Don agreed to release those
claims.
      Donna contends the court had no jurisdiction to award fees
because Don’s petitions sought fees for “removing” the trustees,
and the trustees were not removed. But they were replaced by
the referee and Don’s efforts to remove them resulted in other
concrete benefits. They were disabled from using or disbursing
trust assets when the trust accounts were frozen. The referee
was appointed to handle the final accounting, filings, and
distributions. As the court explained, there was little more for a
trustee to do before terminating the trusts, and there was no
reason to appoint “new trustees for purposes of emotional
victory.”
      Even if the award recognized benefits that Don did not
specifically allege, and this could be construed as exceeding



                                14
jurisdiction, “[a]cts merely in excess of jurisdiction, by a court
having jurisdiction of the subject matter and parties, should not
be subject to collateral attack unless exceptional circumstances
precluded an earlier and more appropriate attack.”
(Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1095
(internal quotations omitted) [party who had notice of surcharge
proceeding and elected not to participate was estopped from
attacking findings made therein].) Donna had a full opportunity
to object to Don’s petitions.
            Substantial Evidence to Support Fee Award
       The record supports the probate court’s finding that the
litigation substantially benefitted all beneficiaries. Don’s
litigation preserved trust assets when the accounts were frozen,
JoAnn and Edward’s spending and borrowing stopped, they
repaid a post-death loan, they waived their fees, and they
assumed trust liability for tax penalties and interest. All of this
preserved a common fund for the benefit of the non-participating
beneficiaries.
       And even if there had been no pecuniary benefit to the non-
participants, they received substantial nonpecuniary benefits for
which the court had equitable power to award fees under the
substantial benefit doctrine. (Fletcher v. A.J. Industries,
Inc. (1968) 266 Cal.App.2d 313, 324, superseded by statute on
other grounds in Brusso v. Running Springs Country Club (1991)
228 Cal.App.3d 92, 106, 110-111.) In Fletcher, a shareholders’
action conferred substantial nonpecuniary benefits on a
corporation by maintaining its health, raising standards of
fiduciary relationships, and preventing abuse. Similarly, this
litigation maintained the health of the sub-trusts; raised the
standards of fiduciary relations, accountings and tax filings; and
prevented abuse. “It is not significant that the ‘benefits’ found



                                15
were achieved by settlement of plaintiffs’ action rather than by
final judgment.” (Id. at p. 325.)
       The trial court was well positioned to assess whether the
litigation conferred a substantial benefit. It presided over two
years of litigation and five days of trial. Its finding is supported
by substantial evidence and is “decisive on the appeal.” (Fletcher
v. A.J. Industries, Inc., supra, 266 Cal.App.2d at p. 325.)
       There was no need for billing records to support the
amount of the award, because the only parties who contested the
award agreed to the amount. Had Donna responded or objected
to Don’s verified petitions, she would have been entitled to an
evidentiary hearing on the question of the reasonable value of
services rendered. (§§ 1043 [right to file objections], 1046 [court
shall conduct a hearing on objections]; 1022 [uncontested verified
petition is competent evidence]; Donahue v. Donahue (2010)
182 Cal.App.4th 259, 271 [the probate court determines whether
the litigation is a benefit and service to the trust before awarding
fees].) But she did not. As her counsel explains on appeal, she
made a deliberate decision that the cost of participating in the
trial outweighed the potential benefits because her share of the
distribution would be small. She participated in earlier
proceedings, including a mediation and her own successful
petition for preliminary distribution, but she chose not to litigate
Don’s fee claim.
       Only JoAnn and Edward objected to the petitions and they
withdrew their objections by settling their claims mid-trial,
before Don was required to prove the amount of fees reasonably
incurred. Don’s counsel prepared a fee application the night
before the parties reached settlement, and served it on JoAnn
and Edward the next morning, but he did not file it because they
reached a settlement. Had Donna participated in the trial, she



                                 16
could have withheld consent to the settlement absent satisfactory
proof of the amount claimed.
       The probate court was not surprised by the amount Don
claimed, having presided over the litigation for two years in the
context of this family’s dynamics. It remarked, “The totality of
the fees and costs between these two firms, and one more
accounting firm to finalize the 706, that experience is perfectly
foreseeable, from my point of view, when you look down and you
see what mom and dad Smith left as the likelihood of how this is
going to go down.”
       Donna nonetheless contends that the court should have
apportioned the fee award because most of Don’s fees were
incurred prosecuting his elder abuse petition, not for the benefit
of the sub-trusts. Apportionment, however, was not necessary
because the pleadings were completely intertwined and relied on
the same factual allegations. (See Amtower v. Photon Dynamics,
Inc. (2008) 158 Cal.App.4th 1582, 1604.) “[A]llocation is not
required when the issues are ‘so interrelated that it would have
been impossible to separate them into claims for which attorney
fees are properly awarded and claims for which they are not.’”
(Ibid., quoting Akins v. Enterprise Rent-A-Car Co. (2000) 79
Cal.App.4th 1127, 1133.)
       Donna’s portion of the fee award is small and consistent
with her interests in the sub-trusts. The court spread the
litigation costs among the beneficiaries in proportion to their
interest when it ordered the award to be allocated between the
the sub-trusts 39.39 : 49.90 : 10.71. (Serrano v. Priest, supra,
20 Cal.3d at p. 40, fn. 10 [award is permitted if the litigation
confers a substantial benefit on members of a class and the court
can spread the costs proportionately among them].) Almost 40
percent of the fee award will be paid from the Survivor’s Trust, of



                                17
which Donna is not a beneficiary and regarding which she had no
standing to object. (§ 17200; Code Civ. Proc., § 902.) The total
award will be borne mainly by Don and JoAnn, who have a
combined 75 percent interest in the Survivor’s Trust and 40
percent interests in the QTIP and ByPass Trusts. Donna’s share
of the $721,258.28 award is about $87,000. The court did not
abuse its discretion when it allocated to her share this portion of
the costs of the litigation.
                             DISPOSITION
       The orders appealed from are affirmed. Respondents shall
recover their costs on appeal.
       CERTIFIED FOR PUBLICATION.




                        PERREN, J.


We concur:



      GILBERT, P. J.



      YEGAN, J.




                                18
                     James F. Rigali, Judge

            Superior Court County of Santa Barbara
               ______________________________

      The Law Office of M. Jude Egan and M. Jude Egan, for
Respondent and Appellant Samuel Wachtor as Personal
Representative of the Estate of Donna Renee Smith.
      Rogers, Sheffield & Campbell and Scott B. Campbell, for
Petitioners and Respondents JoAnn Szeyller and Edward
Szeyller.
      Schley Look Guthrie & Locker and Ian M. Guthrie, for
Petitioner and Respondent Don Smith.




                               19
