154 P. 839 | Cal. | 1916
Frank Bryson, administrator of the Estate of Louise Murphy, deceased, prosecutes this appeal from an order of court refusing to allow the item "Attorney's fees, statutory, $1142.18," set out in his final account as being by him incurred for attorney's fees for legal services rendered in conducting the ordinary probate proceedings in said estate.
The matter came on to be heard upon objections interposed to the administrator's final account and petition for distribution. The court made findings of fact upon which no attack is made. Appellant, however, insists that the order made is not supported by the findings. It appears that at all of the times in question Bryson was public administrator of Los Angeles County, in which capacity he administered the estate of deceased; that by section 14, article VI, of the county charter of Los Angeles County, there was created the office of county counsel, which office was, during the time of the administration, filled by A.J. Hill, and whose duties as such officer were prescribed by section 21, article VI, of such county charter, which provides: "The county counsel . . . shall also act as attorney for the public administrator in the matter of all estates in which such officer is . . . administrator, and the county counsel shall, in every such matter, collect the attorney's fees allowed therein by law and pay the same into the county treasury." The name of A.J. *699 Hill, but not by him or his deputies, was attached to all papers with his concurrence and with the intention on the part of said administrator of designating Hill as his attorney in the matter of said estate, as provided in said article VI, section 21, of said county charter. Prior to the filing of objections to the final account, all papers filed in said estate were prepared by said public administrator, or by his deputies and in his office, with the exception that said Hill, county counsel of the county of Los Angeles, prepared and filed in court a brief upon the legal questions raised by a petition filed in the proceeding asking for a revocation of the letters granted to said public administrator, and said A.J. Hill, county counsel, prepared the order which was signed by the judge of the court and filed, denying the petition for revocation of letters issued to the public administrator. Aside from this, said A.J. Hill, county counsel, did not, nor did any of his deputies, prepare any paper or make any appearance by personal presence in court, or give any legal advice, excepting in connection with said petition for revocation of letters aforesaid, concerning the administration of the estate. The public administrator, either personally or through his deputies, did, with the exception above noted, perform all the services which were performed in connection with the administration of said estate, and did not, except as stated, find it necessary to obtain assistance or advice from the said A.J. Hill, county counsel, or his deputies, upon any matters connected with the administration of the estate, though Hill was at all times ready to perform legal services in connection with such administration. As conclusions of law, the court found that no legal services had been rendered the public administrator in the conduct of the administration of said estate, and that neither Bryson, Hill, nor the county of Los Angeles is entitled to be allowed attorney's fees therein in any sum whatsoever.
The service performed in filing the brief in opposition to the petition for the revocation of letters of administration granted to Bryson and the preparation of the order therein, was not the ordinary proceeding referred to in section 1619, of the Code of Civil Procedure, and for which the fees are claimed. If regarded as extraordinary service, no fees were asked therefor. Moreover, in such contest the public administrator was not acting as a trustee of the estate of deceased, *700
but acting solely in and for his own interest or that of the municipality entitled under the charter to the fees of administration. (Estate of Lermond,
The question then fairly presented upon the findings is this: Is the estate of a deceased person chargeable with attorney's fees where the attorney claiming them gives no advice and renders no service to the estate or administrator thereof, the sole basis for his demand being that he permitted the administrator to sign his name to the petition for letters of administration and other documents prepared by the administrator and to which the latter's signature as administrator would give them the same legal effect as though signed by the attorney? (Code Civ. Proc., sec. 1371.) Appellant quotes from Estate of Goodrich,
This view renders it unnecessary to discuss the question of the validity of the charter provision. Suffice it to say that, assuming Hill had, at the administrator's request, rendered services to the estate, then, conceding the act invalid as claimed by respondent, he would nevertheless be entitled to the fees provided by section 1619, since it would be immaterial what motive prompted the administrator in employing him.
As stated, the appeal is prosecuted by the administrator, whose right so to do is not questioned by the respondent. Whether or not he is an aggrieved party possessing the right of appeal, since the statutory changes in sections 1616 and 1619 of the Code of Civil Procedure, providing for the making of an allowance direct to the attorney out of the assets of the estate and as to which the administrator incurs no liability, is not decided.
The judgment is affirmed.
Shaw, J., Sloss, J., Melvin, J., Henshaw, J., Lawlor, J., and Angellotti, C. J., concurred. *702
