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IN THE COURT OF APPEALS OF IOWA No. 6-838 / 06-0497 Filed December 13, 2006

IN THE MATTER OF THE ESTATE OF IRENE INA JOHNSON JAN ARKFELD and LANA BRUNING, Plaintiffs-Appellants, vs. DONALD D. JOHNSON, Individually and as Executor of the Estate of IRENE INA JOHNSON, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Montgomery County, James Heckerman, Judge.

Plaintiffs appeal an order fixing fees in a probate estate. AFFIRMED.

Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellants. Mark D. Swanson of Swanson Law Firm, Red Oak, for appellee.

Considered by Sackett, C.J., and Eisenhauer, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 ROBINSON, S.J. I. Background Facts & Proceedings

This case involves the estate of Irene Johnson, who died on June 8, 2004, at the age of eighty-four. Irene had three children, Donald Johnson, Jan Arkfeld, and Lana Bruning. After Irene's death, Donald submitted to probate a will dated August 21, 2001. Donald was appointed executor for the estate. The will

provided Jan and Lana would each receive a bequest of $5000, and the remainder would go to Donald. The probate inventory shows Irene's estate is worth about $3.78 million. Jan and Lana filed a petition to set aside the 2001 will, alleging it was the result of undue influence by Donald. Plaintiffs seek to have Irene's previous will dated November 7, 2000, admitted to probate. Under the 2000 will each child would receive one-third of the estate. With the will contest pending, the executor, Donald, and the estate's attorney, Mark Swanson, requested ordinary fees under Iowa Code sections 633.197 and 633.198 (2003). Jan and Lana objected, asking that the request for fees be held in abeyance until after the trial of the will contest. A hearing on the application for fees, which was not reported, was held in February 2006. The district court awarded the executor a fee of $67,685.07, with one-half of that amount, $33,842.53, payable at that time and the remainder to be paid when the estate received final approval of tax issues from the Internal Revenue Service (IRS). An identical award of fees was made to the estate's attorney. The court stated, "Litigation continues in a will contest and the objecting parties

3 remain free to object to attorney or executor requests for extraordinary fees at such time that application is made therefore." Jan and Lana appeal the fee awards. II. Standard of Review

A hearing on an allowance of fees in a probate case is in equity, and our review is de novo. See Iowa Code

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