123 Cal. 391 | Cal. | 1899
These are separate appeals by the residuary legatees and devisees under the will of W. H. Kruger, from the order of court fixing the attorney’s fees of the attorney of
J. L. Merguire, an executor of the estate of W. H. Kruger, presented his fifth annual account, and at the same time tendered his resignation as executor, to take effect upon its settlement. He also petitioned the court to determine the compensation to which he was entitled. Due notice was given of the hearing of all these matters; a hearing was had, the account settled, and the compensation of the executor fixed. Thereupon Merguire presented an application to the court setting forth that as executor he had employed J. M. Walling, attorney at law, on behalf of himself and his eo-exeeutrix, as their attorney at law in the matter of the estate; that Walling had rendered valuable services to the estate, for which he had been compensated only in part, and that such services had been rendered upon an agreement between himself and Walling that the amount of the latter’s compensation should be determined and fixed by the court. He, therefore, requested the court to fix the amount of compensation for the services of the attorney. Ho notice of this application was given to the heirs, devisees, and parties in interest. In fact, no notice whatever was given. But the court proceeded forthwith to take testimony, notwithstanding the protest of one of the residuary legatees, who happened to be present, and who insisted that in the absence of notice the court was without jurisdiction to pass upon the matter. The court made its order directing the representatives “to pay to said J. M. Walling, Esq., from the funds of the said estate the sum of seven thousand five hundred dollars.”
The order is an appealable order. (Stuttmeister v. Superior Court, 72 Cal. 487; In re Kasson’s Estate, 119 Cal. 489.) The compensation of the attorney of the executor, while not a claim against the estate, is an expense of administration, allowed to the executor, the amount of which is to be fixed by the court and paid out of the estate (In re Levinson, 108 Cal. 450); but such an order for the payment of money, by which the property of the heirs, legatees, and devisees is to be taken from them, cannot be made without notice to them, and an opportunity to be heard. It cannot require the citation of authority
The order of the court fixing the compensation of the attorney without notice to the parties in interest is therefore void.
Upon the hearing, one of the devisees who was present offered evidence upon the question of the value of the services of tire attorney, which, it was insisted, showed that by reason of the culpable negligence of the attorney there had been lost to the estate the sum of fourteen thousand dollars. Objection was made to the introduction of the evidence upon the ground that it could not be .considered by the court in the proceeding at bar, because the court did not have jurisdiction nor power to determine the liability of an attorney for his negligence in the conduct of litigation on behalf of the estate, and that the only remedy of a person interested in the estate for injury occasioned by such negligence was through the medium of a civil suit against the attorney. The court ruled that such negligence could be considered “incidentally” in determining the value of services for which compensation was asked, and overruled the objection. Later, however, when the court came to deliver its decision, it announced that it “refused to allow in this proceeding as an offset or counterclaim any damages claimed to be occasioned by the alleged neglect of J. M. Walling in the Henry suit.” It is evident from the foregoing that it is a matter of dubiety whether or not the court weighed the evidence touching the question of negligence, what it meant when it said that it would consider it “incidentally,” and whether its final refusal to allow as an offset the damages claimed was because of its conviction that
The order appealed from is reversed.
Temple, J., and McFarland, J., concurred.