*1 July A. No. 22062. In Bank. [L. 1952.] JOHN McMAHON, J. BAR v. STATE OF Petitioner,
CALIFORNIA, Respondent. *2 pro. McMahon, per., John F. Poole and R. J. Milton John for Petitioner. Smith Byron O. and Albert E. Wheatcroft Weil, E. Smith
Jerold Respondent. for The petitioner, McMahon,
THE John J. COURT seeks of a recommendation of the Board of review Governors suspended practice from Bar that State period for a of six months. The Board of law Governors findings of a approved of fact Local Adminis adopted and trative Committee. underlying the recommendation are as follows:
The facts leaving in April, 1944, died in Arizona Rae Merrill One S. April Later as at- property California. Merrill, decedent, a brother of the in- torney Fred B. for estate, administration of the proceedings stituted of Fred as administrator. resulting appointment in the alleged on special letters of administration petition had died intestate. the decedent and belief that information Board of Gover- Committee The Local Administrative prepared herein, who had found that nors signed but not letters of administra- tion, knew that a will had theretofore been executed and that he knew its including identity contents of the beneficiaries executrix therein, although named he did not know actually it was in existence at the time of the decedent’s death. The Board of Governors further peti- found that the tioner had indicating allegations intestacy on information justified. and belief were not This alleged infraction of the rules of conduct con- stitutes the charges basis of Count placed against One of the petitioner. charges
Count Two embarked program consisting harassment proceed- of a series of ings delay appointment instituted of the named execu- trix under the will of the decedent. Both the Local Admin- istrative Committee and the Board of Governors found that engaged had not program, in such a and this charge is urged by not now respondent.
Petitioner’s client was removed as October granted and the named executrix was testamentary letters following day. alleges, Three and the Local Administrative Committee and the Board of *3 Governors found, during acting that the time that he was attorney petitioner the demanded and received belonging from his client out of funds to the estate totalling $4,059.40 sums approximately for extra- ordinary legal services and The total of the costs. assets estate amounted $7,199.90. findings to the The recite sum payments these were “in bad demanded and received petitioner faith” request order of and without for an approval by court or court, except as to sum of $33.10, for which an order was obtained. questions
Two presented: (1) are Did the have sufficient the existence of a will which allegations should forbid the intestacy which he caused to presented to the court; (2) and did exercise demanding bad faith in accepting prior services without a order of the court? inquiries
If either or both of these are answered in the disciplinary affirmative this proceeding justified. was (State Act, Bar 6067, 6068, 6106.) 6103 and §§ The he contends that has committed no infrac- tion of the rules of conduct and that the facts support findings do not and recommendations.
There is credible evidence that to the time of filing of the letters of administration had been informed the execution of the will year “a decedent; or so before” that he was informed of the prepared name of the who had the will and copy knowledge who he files; had a in his had of the general person contents the will and that knew of the given original possession peti who had been of the will. knowledge copy tioner admits the existence of a will asserts a belief claimed be reasonable but will longer existence; was no or that if it were could not probated incompetent was at the time of the testator its any execution; or that in event the will was invalid and in operative heir pretermitted due to the claim of a who would take as sole heir. knowledge had no affirmative of the de- He
struction of the will. relied on information that attorney connected administrator and an with decedent’s family spending did of a will after not know of existence one. He made no effort to two hours a search for ascertain by inquiry original of the one in the existence of the will petitioner’s placed. it had been insist- possession whose affirmatively know of the will avoids the ence that he did not one had been he had actual notice that executed. fact that only on his evidence of notice He asserts that testimony complaining wit- existence of the will is the administrator, and that this witness had been ness, testimony However, petitioner’s own reveals impeached. did knowledge provide that the will not he relied seeking justify his conduct and heir in pretermitted for a copy of a of will.” is not that he “knew he admits “possessed will, but that charged knowledge of a with him placed inquiry have as should of such information .” It was that he of a will . . existence special letters in which petition for to be filed the caused inquiry “That due search alleged under oath: it was any will and deceased left ascertain if said made to been according found, and has been testament, but none *4 your petitioner, belief knowledge, best died intestate.” said deceased ignore he could petitioner’s contention that determined person a later provide will due to its failure to though Even be sustained. heir, cannot pertermitted to abe will may be invalid a will dispositive provisions of merely appoints executor, and is entitled if an operative it of the estate. purposes of administration probate for to 118]; 609, Estate (In Hickman, re 101 Cal. 1006].) Philippi, Cal.App.2d 127 self-serving he had no contends that argu withholding knowledge as he had. His motive in in primarily is, reveals, ment and the record was appointed special getting his client Fred Merrill terested possession Hillin could obtain administrator before Helen Fred. of the estate. Helen Hillin is a sister of She assets had been named execu was also a sister of the decedent and Hillin trix in the had notice. Mrs. will of which the gone decedent and to Arizona to the funeral of the attend expected shortly. possession was back It was her reputed placed. prior litigation In Fred will was to have been appointed had been administrator of the estate Merrill, get sister, Blanche another and had been unable to wrong possession alleged due assets that estate appropriation peti ful Helen Hillin. The those assets prior tioner contends that the conduct of Hillin showed Mrs. she improper person was an to administer the estate of decedent; procured appointment that he Fred Merrill as the in protect administrator in order to pretermitted heir; appointment terests of the proceedings pending Fred facilitated in a action in which seeking partition property jointly held family, permitted members of the Merrill Fred and that made co- administrator of the estate of the decedent to be plaintiff peti time personally. with Fred Prior to this against tioner, represented partition who Fred in the suit family, the other had been then-living three members of the named unable to obtain service on the decedent who had been as a defendant. justification foregoing cannot considerations serve withholding from the part on the will, knowledge he had the existence of
what alleged intestacy causing allegation guilty of con presented was, therefore, court, question must statute, duct denounced and the first answered the affirmative. unjustifi charges Three in effect that the
ably from the demanded and received court order. services without as follows: provides Code, Probate Section *5 372
“Attorneys for executors and administrators shall be al- of as . estate, lowed out fees . such further . amount may just extraordinary deem and court reasonable for services.”
Attorneys
special
for
administrators are within
pur
of
(Estate
Kafitz,
view the statute.
fees. Certain from that whatever he received his compensation own use was not unreasonable great legal rendered in good amount services him faith legal long of the estate series of behalf actions and proceedings. petitioner urges, justification, as further he con- attorneys
sulted and was advised other that his demand acceptance legally fees proper of such were and that if extraordinary honestly he believed that he was entitled to an order of fees without should not be found guilty obtaining them. He relies upon of bad faith 1282], 6 Lankershim, Cal.2d Estate authority proposition may an demand with the consent services and receive parties and without an of court. interested order all fol- fees in the case the court affirmed an allowance of fixed lowing language: found and “. . . trial court [T]he attorney’s the amount fees ... to be allowed Mr. Mc- $56,443.15, Donald the sum of sum $10,000 minus the which had been him paid on account of such fees filing of the accounts.” No reference is other made in the opinion to $10,000. says authority. also relied other Probate, page 831, cites Bancroft section where “An administrator, having stated: executor or funds of possession, unquestionably physical estate his has the
power pay attorney to to his funds for services rendered though the . . . Moreover, latter . . . made pay- has ment of the authority with funds estate and without of court . . compelled . to disgorge, cannot be wholly being representative matter between and the Corpus estate.” also refers to 33 Juris Secundum where page it is at (citing Ludwig Superior Court, said 1214 v. 217 984], authority) Cal. supporting 499 as : “A repre- [19 need permission sentative secure of not the court before employing counsel, judicial approval nor need secure be- paying fore fees. He proceeds risk, counsel at his own how- ever, if he does approval.” peti- not first obtain such urges law, tioner heir under may, that a sole deal with the property of an estate without administration and that transactions, heir, citing Phelps v. final, become Grady, Welch, 168 In 926], Cal. 73 P. re 110 Cal. upon by Whether relied the authorities 1089]. position his de- sustain need not and is not be say enough It is here cided. that all of the circumstances presented and are considered sufficient to rebut inference faith good bad and to sustain the inference of faith to which (Code our of Civ. is entitled under statute. Proc., 1, 19, 33.) subds. § petitioner, charged concluded that the
It is in Count cause, One of notice to show as found the Board Governors, had such the exist- justified ence of will of the decedent that he was not in representing to the that the decedent had died intes- charge tate; “harassment” contained in Count the notice show should dismissed; Two of cause be charge part “bad faith” on the of the accepting fees services court, Three, to an order of the the evidence and be not sustained should dismissed. In of the Two and Three should dis- view fact that Counts be justice be
missed, we conclude that the ends will best days by fixing suspension. as the time of served Three that Counts Two and It is therefore ordered be, hereby, are dismissed. show cause and the same notice to suspended As One it is ordered to Count period of 60 practice of law this state from the days becomes final. after this order
CARTER, J.I dissent. any show mis- is insufficient to my opinion In the evidence he violated the rules petitioner or that on the conduct any Bar California conduct of State proceed- therefore, entire would, dismiss respect, and I ing against him. rehearing application August was denied
Petitioner’s J., opinion Carter, 28, 1952. granted.
should July 18478. Bank. No. F.
[S. 1952.] ERICKSEN, Respondent, v. SOUTHERN PACIFIC OVE E. (a Corporation), Appellant.
COMPANY