101 P. 448 | Cal. | 1909
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This is an appeal from an order denying the application of appellants for an order allowing them compensation, in a sum to be fixed by the court, for services *451
rendered by them as attorneys at law prior to the probate of the will of deceased, to and under employment by the person named in said will as executor. The application was made and acted on by the court after the suspension from office of said executor, after the appellants had ceased to act as attorneys in the estate, and before any final accounting of the affairs of said estate. The legal services alleged to have been performed for which the estate could in any event be held liable, so far as the same can be held to constitute other than services in conducting the "ordinary probate proceedings," consisted of advice and assistance in the matter of preparing to resist certain contests of two codicils to said will, and in representing the executor in the proceedings instituted in court in support of said contests. The provisions of the will and codicils and the facts in relation to those proceedings are stated in the opinion in Estate of Hite,(ante, p. 436), [
The action of appellants in applying directly to the court for an order fixing their compensation and directing payment thereof is based on the provisions of section 1616 of the Code of Civil Procedure, as amended in 1905. Prior to such amendment it was settled that the attorney of an executor or administrator was not a party interested in the estate, and must look solely to the executor or administrator for his compensation, such officer being allowed credit on his accounting for such reasonable fees as he had paid his attorney for advice and conducting necessary proceedings and suits in court. Section 1616 of the Code of Civil Procedure, as amended in 1905, provides: "Any attorney who has rendered services to an executor or administrator may at any time during the administration, and upon such notice to the other parties interested in the estate as the court shall by order require, apply *452 to the court for an allowance to himself for compensation therefor, and the court shall on the hearing of such application make an order requiring the executor or administrator to pay to such attorney out of the estate such compensation as to the court shall seem proper." The section gives an appeal to the attorney and other parties interested from any order "fixing the amount of such compensation," which this court held on a motion to dismiss this appeal included the right to appeal from an order denying any compensation. At the same time, section 1618 of the Code of Civil Procedure was amended and a new section numbered 1619 was added. As amended, section 1618 allows the executor or administrator for his services certain commissions on "the amount of the estate accounted for by" him, and section 1619 provides: "Executors and administrators shall be allowed for fees of their attorneys for conducting the ordinary probate proceedings, the same amounts as are allowed by the last section as compensation for executors and administrators for their own services. In all cases, such further allowance may be made as the court may deem just and reasonable for any extraordinary services, such as sales or mortgages of real estate, contested or litigated claims against the estate, litigation in regard to the property of the estate, and such other litigation as may be necessary for the executor or administrator to prosecute or defend."
It is clear that section 1616 of the Code of Civil Procedure, as amended, was not intended to subject an estate to any greater liability in the matter of attorney fees for legal services rendered to an executor or administrator than existed prior to the amendment. So far as legal services in conducting "the ordinary probate proceedings" are concerned, the legislature by section 1619 of the Code of Civil Procedure, established the compensation in the way of certain fixed commissions on the "amount of the estate accounted for by" the executor or administrator, and for such proceedings such commissions constitute the compensation that the court may order paid on an application by the attorney under section 1616 of the Code of Civil Procedure. For the legal services denominated in section 1619 "extraordinary service," the probate court was left with the power that it formerly had to determine whether the same was necessarily required of the *453 executor or administrator in the proper discharge of his duty, and what would be a just and reasonable allowance to make to the executor or administrator on account thereof, and on application by an attorney under section 1616 for compensation for such services he is entitled to receive only such compensation therefor as the probate court would have allowed the executor or administrator for fees of attorneys on an accounting. The whole purpose and the only effect of section 1616 as amended is to make the attorney a party interested in the estate for the purpose of directly enforcing his claim for such compensation for legal services as would be allowed the executor or administrator on an accounting as necessary expenses in the discharge of his duties.
It would appear to follow that when an application of this character is made directly by attorneys, the probate court has the same broad discretionary power in hearing and deciding the same that it formerly had and still has in regard to a charge made in the account of an executor or administrator for fees paid to attorneys in the matter of the settlement of the estate. It is thoroughly settled that objections or exceptions on the part of one interested in an estate to the credits claimed by an executor or administrator in his account are not essential to the power of the court to disallow or reduce them, and that it is the duty of the court even where no objection is presented, to carefully examine the account and reject of its own motion all claims of the executor or administrator that are illegal in themselves or unjust in fact. (See In re Sanderson,
In view of what we have said, if we concede that neither of the grounds of objection stated in the written opposition presented by Riley to appellants' application by way of demurrer *454 was well founded, it does not follow that the order of the lower court denying such application must be reversed. The court had the power and it was its duty to deny the application, in the absence of any written opposition thereto, if the services for which compensation was sought were not such as should be paid for from the funds of the estate. Although the court ordered that "the demurrer of J. Claude Riley be and is sustained," it clearly enough appears from the record that the matter of the application was considered upon the facts shown by the files, papers, and records in the matter of the estate, and denied in the light of those facts. As we have seen, the record shows that the matter was submitted to the court on such files, papers, and records, and in view of the character and subject-matter of the application, the order of the court was, in effect, that the allegations of the petition, considered in the light of the facts shown by the files, papers, and records of the estate, did not establish a case in which the court should then allow attorney fees from the estate. Did the court err in so concluding?
We have no statute in this state which in terms authorizes an executor named in a will to recover from the estate fees paid by him to attorneys in resisting a contest of the will before probate. It was held in Estate of Olmstead,
(The italics are ours.)
We think this states a most equitable rule, and one that is in full accord with the established doctrine in this state that an executor or administrator as such has no part to play in contests between heirs, devisees, or legatees disputing regarding the distribution of the estate. As in the case of a contest on distribution, a contest of a will is generally nothing more than a contest between heirs and devisees and legatees for the property of the deceased. As put in a Pennsylvania case: "As regards the quantum of the estate, it is a matter of indifference whether there be a will or not. Will or no will, is a question which cannot affect the estate, in this respect, in the slightest degree; but it may be, and generally is, a matter of great interest to those who claim as legatees or devisees under the writing purporting to be a will. They are the only persons interested in establishing it as a will. While on the other hand, the heirs at law or next of kin to the deceased, who are either excluded by the writing from receiving any portion of the estate, or as much of it as they would be entitled to in case of intestacy, are the persons principally interested in opposing the establishment of the writing as a will." (See Mumper's Appeal, 3 Watts S. (Pa.) 442.) There is no decision of this court relative to contests before probate that is in conflict with the expressions above quoted from Woerner on Administration. In Henry
v. Superior Court,
The opinion of the learned trial judge is incorporated in respondent's brief. While it constitutes no part of the record, it is proper to say that it appears therefrom that he was of the opinion that, conceding the power of the court in a proper case to allow attorney fees for resisting a contest before probate, a question not decided by him, this was not a proper case for such allowance.
It is further urged by appellants that in any event they were entitled to be allowed compensation for the formal work of preparing necessary papers on probate of the will and codicils, such as the order admitting them to probate, the certificate establishing the same, the written testimony of the witnesses, etc. Such services were rendered in "conducting the ordinary probate proceedings" mentioned in section 1619 of the Code of Civil Procedure, and the compensation therefor is included in the commissions "upon the amount of the estate accounted for" by the executor established by the same section as the compensation of attorneys for the ordinary probate proceedings in the matter of an estate. A court would not be authorized, in view of this statute, in making any further allowance on account of such services, as for any extraordinary service. We do not think that it was intended by section 1616 of the Code of Civil Procedure to require a court to make any allowance on account of such commissions in advance of a final account by the executor or administrator. While that section provides that any attorney who has rendered services "may at any time during the administration" make an application for compensation for his services, and the court shall thereon make an order requiring the payment of such compensation for the services as the court shall deem proper, the section must be read with section 1619 Under the latter section, the compensation of an attorney for all the "ordinary probate proceedings" is made up of the commissions specified upon the amount of the estate accounted for by the executor or administrator. The amount to be allowed for all the ordinary proceedings cannot be ascertained until the amount of the estate accounted for in the administration is known, and unless the whole amount of the compensation can be ascertained, it is impossible to arrive at the proportionate amount to be allowed *459
for a part of such services. It is settled that an executor or administrator is not entitled to the commissions allowed him by law until the settlement of his final account. (See Estate ofRose,
Objection is made to the inclusion of the will and codicils in the bill of exceptions, but as we have already seen the matter was submitted to this court for consideration upon all the records, files, and papers in the cause, and these papers constituted a part thereof. Objection is made to the insertion of other statements in such bill, but as we deem them absolutely immaterial and without prejudice to appellants' rights, it is not necessary to determine whether or not they should have been inserted.
The order appealed from is affirmed.
Shaw, J., Sloss, J., Henshaw, J., and Melvin, J., concurred.
Rehearing denied.