Opinion
Page __
__ Cal.App.2d __ 316 P.2d 694 In the Matter of the ESTATE of Edward L. LEDBETTER, Deceased. Mark WOOD, Petitioner and Appellant, v. John D. LUTON, Guardian of Kathryn Ledbetter, Minor, Contestant and Respondent. Civ. 22497. California Court of Appeals, Second District, First Division Oct. 17, 1957Hearing Granted Dec. 12, 1957.
Pat A. McCormick, Los Angeles, for appellant.
Rubin & Small, Beverly Hills, for respondent.
FOURT, Justice.
This is an appeal from that portion of a decree in probate wherein the court surcharged the administrator $1,376 on his final account.
The decedent at his death, and for some time before, resided in Long Beach, California with his wife and a minor son. He had previously been married and his former wife and their minor daughter Kathryn Ledbetter, aged about three and one-half years, resided in Oklahoma. A jet airplane owned by the United States Air Force apparently crashed into the house of decedent, killing him and his wife, and injuring his son to the extent that he died within a day or so, and destroying the household furnishings, clothing and so forth. Wanda Landrum, a sister of decedent, filed a petition for letters of administration in which Mark Wood, petitioner and appellant herein, acted as her attorney. John D. Luton, the uncle of Kathryn Ledbetter, secured his appointment as guardian of said minor in Muskogee, Oklahoma. Uitimately, on April 20, 1954, Mark Wood was appointed as administrator of the estate in lieu of Wanda Landrum, and Floyd Norris acted as his attorney.
On January 12, 1955, some several months following his appointment, the administrator through his attorney filed an action entitled 'Mark Wood, Plaintiff, v. United States of America, Defendant' (No. 17756-T), in the United States District Court for the Southern District of California, Central Division, seeking damages in the sum of $7,269.99, in behalf of the estate of Edward L. Ledbetter, deceased, and the further sum of $100,000 for the benefit of Kathryn Ledbetter, the minor daughter of decedent. Wood set forth in a petition to the court that he included in the action the claim of Kathryn Ledbetter for the reason that he felt that under the law it might be the last day such an action could be filed, and that he was under the impression that only one cause of action was permissible to recover for the damages to the estate and to the heirs by reason of the crash of the airplane. This, in spite of the fact that Luton and the attorney for Wood had carried on considerable correspondence with reference to the matter wherein it was clearly set forth that Luton expected to and would prosecute the claim of the minor in Oklahoma, and that Luton did not want Wood to do anything about the minor's claim in the federal court in California. After the action was filed in violation of the instructions of Luton, Wood was also informed by Luton, the guardian, that he [316 P.2d 696] intended to file suit in Oklahoma in behalf of the minor and he requested Wood to dismiss, without prejudice, that portion of the complaint seeking compensation for the minor. The probate court directed the administrator not to amend or dismiss the action in the federal court in Los Angeles.
In June, 1955, Luton as the guardian, filed suit in the federal court in Oklahoma to recover damages for the loss of the father of said child. That case was settled. By reason of the settlement in Oklahoma, the case in the California federal court was reduced to the claim of the estate only.
A stipulation was entered into between the United States attorney, Wood and Norris, the attorney for Wood, to settle the claim in the federal court in California. That stipulation provided, among other things that: (1) the United States of America would pay plaintiff Wood a total of $6,880; (2) the stipulation would be presented to the federal court for approval; (3) Wood would petition the superior court (probate division) 'having jurisdiction of the Estate of Edward L. Ledbetter, deceased, for the appropriate authority to enter into the within Stipulation and shall furnish to the defendant a certified copy of the Order of such authority'; (4) there be paid to Norris, the attorney for Wood, out of the settlement $1,376, as attorney's fees.
Wood then filed, on March 28, 1956, in the superior court, a petition for an order instructing him with rrference to the compromise. On May 21, 1956, the probate judge, without any appearance by the administrator or his attorney, signed an order, the preamble or introduction of which set forth in brief some preliminary matters (including a reference to the stipulation), and then recited: 'It is hereby ordered, adjudged and decreed by the court that the petitioner, Mark Wood, as administrator of the estate of Edward L. Ledbetter, deceased, shall, upon receipt by him from the United States of America of the sum of $6,880, file a Dismissal with Prejudice in that certain suit entitled 'Mark Wood v. United States of America,' being Civil Action No. 17756-T, in the United States District Court, Southern District of California, Central Division.' (Emphasis added.)
The foregoing order and the stipulation were presented to the judge of the federal court and the case was settled. It is apparent that the administrator, instead of placing the entire $6,800 in the estate account, retained or caused to be retained $1,376 therefrom, supposedly as attorney's fees for Norris. The superior court, in settling the account, found that Wood had accounted for only $5,504, that no order of the court had been made providing for any payment to Norris of $1,376 as attorney's fees, and thereupon surcharged the administrator accordingly after allowing some extraordinary fees to the attorney and the administrator.
The sole question involved in this case is: Was the surcharge proper under the circumstances? The answer is--yes.
The stipulation and the correspondence indicate without question, that all of the parties thereto knew they were dealing solely with an asset of the estate.
Appellant asserts that the settlement was made under Title 28 United States Code Annotated, § 2677, and that the succeeding sections provide for attorney's fees. In our opinion the federal court had no probate jurisdiction, and aection 2678, Title 28 United States Code Annotated, is, of necessity, subject to an implied limitation upon its applicability. Certainly there is no indication that Congress and the federal courts have intended a usurpation of state jurisdiction. Even if they had, such usurpation would, in all probability, be unconstitutional. Moore v. Smaw and Fremont v. Flower, 17 Cal. 199; People v. Brady, 40 Cal. 198; 20 Cal.Jur.2d, Executors and Administrators, § 38, p. 73.
Furthermor, it is not mandatory under section 2678 that the federal court determine and allow attorney's fees in every case.
The stipulation in the instant matter recognized that the probate court had jurisdiction of the estate of Edward L. Ledbetter, and the proceeds of the settlement should go to that account.
[316 P.2d 697] There was no hearing of any kind in either court to determine the reasonableness of the attorney's fee. Any contention of appellant that the court in probate could settle attorney's fees under the petition for instruction proceedings is without merit. It is clear that '[t]he use of petitions for instructions by executors or administrators, pursuant to Section 588 of the Probate Code, is limited to those matters where no other or different procedure is provided by statute.' Policy Memoranda of Los Angeles County Probate Court, 1955, § 209, p. 14.
The statutory proceeding for obtaining an allowance upon attorney's fees from an estate in probate is set forth in section 911, Probate Code. There was no attempt to comply with the provisions of that section. In re Estate of Herbst, 26 Cal.App.2d 249, 79 P.2d 139; In re Estate of Pailhe, 114 Cal.App.2d 658, 251 P.2d 76; In re Estate of Pardue, 57 Cal.App.2d 918, 135 P.2d 394.
The order and judgment are, and each is, affirmed.
WHITE, P. J., and DRAPEAU, J. pro tem., concur.