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Ludwig v. Superior Court in and for Los Angeles County

District Court of Appeals of California, Second District, Second Division
Sep 19, 1932
14 P.2d 321 (Cal. Ct. App. 1932)

Opinion

Rehearing Denied Oct. 17, 1932.

Hearing Granted by Supreme Court Nov. 17, 1932.

Petition for certiorari by Clarence Ludwig against the Superior Court of the State of California, in and for the County of Los Angeles, and Haakon Berg and another, executors of the estate of Stephen M. Meyers, deceased.

Judgment in accordance with opinion.

COUNSEL

Pottle & Pottle, of Los Angeles, for petitioner.

Charles R. Dyer and Mark A. Hall, both of Los Angeles, for respondents.


OPINION

CRAIG, Acting P. J.

The executors of the estate of Stephen M. Meyers, deceased, filed with the Superior Court their first account and report, to which the petitioner interposed numerous exceptions, certain of which were overruled, whereupon said petitioner appealed and presented for settlement a proposed bill of exceptions. Thereafter the attorney for the executors made application for an order to procure the reporter’s transcript of evidence adduced upon the hearing of the exceptions to said account and to employ special counsel to act in the place and stead of said counsel for the executors in resisting the appeal. This latter application was granted by the court below. The petitioner thereupon applied to this court for a review of such last-mentioned order, upon the ground, as stated by him, that the expenses of sustaining items of an executor’s account which deprive an estate of money are not properly chargeable against the estate, and that the services of other counsel would not be rendered to said estate, nor would they be extraordinary services contemplated by the Probate Code.

The respondents urge that articles 1 and 2 of chapter 15 (section 900 et seq.) of the Probate Code, and decisions upholding applications of executors or administrators for allowances of expenditures necessarily made for services and transportation of their counsel, justified the order in controversy in that respect. Section 900 (article 1) reads in part as follows: "The executor or administrator shall be allowed all necessary expenses in the care, management and settlement of the estate, and, for his services, the compensation hereinafter provided. * * *" Sections 910 and 911 (article 2), respectively, read as follows:

"Attorneys for executors and administrators shall be allowed out of the estate, as fees for conducting the ordinary probate proceedings, the same amounts as are allowed by the previous article as commissions to executors and administrators; and such further amount as the court may deem just and reasonable for extraordinary services.

"Any attorney who has rendered services to an executor or administrator, at any time after six months from the issuance of letters testamentary or of administration, and upon such notice to the executor or administrator and to the persons interested in the estate as the court or a judge thereof shall require, may apply to the court for an allowance upon his fees; and on the hearing the court shall make an order requiring the executor or administrator to pay such attorney out of the estate such compensation, on account of services rendered up to that time, as the court shall deem proper, and such payment shall be made forthwith." It does not appear from the record before us that the executors’ attorney claimed to have rendered services, nor that any attorney who had rendered services for which application to the court for an allowance upon his fees was authorized presented a claim therefor, upon notice or otherwise. In re Rose’s Estate, 80 Cal. 166, 22 P. 86, 89, approved an allowance of a "credit for payments made for the services and traveling expenses of his [the administrator’s] attorney, not exceeding a reasonable compensation for the labor actually performed," after the conclusion of two appeals. Other citations of respondents disclose no sanction of the allowance of a further amount for extraordinary services except upon application of an attorney who has rendered services to an executor or administrator. Painter v. Estate of Painter, 78 Cal. 625, 21 P. 433; Estate of Prather, 183 Cal. 314, 191 P. 521.

The remaining question is as to whether or not an order should issue for a reporter’s transcript, at the expense of the estate, for resistance of an appeal by a creditor. The executors did not need to secure permission of the court to make this expenditure. The giving of such permission, however, is not a final determination of the propriety of the expenditure nor of its being a proper charge. Since this is so, no good purpose can be served by vacating the order of which complaint is made. The petitioner has his remedy in his right to object to this item on final settlement of the executors’ account, and if the question is then decided adversely to him, to an appeal from such decision. Estate of Smith, 118 Cal. 462, 50 P. 701.

The order is annulled as to the allowance of attorney’s fees. With respect to the order for a reporter’s transcript the writ is dismissed.

I concur: IRA F. THOMPSON, J.


Summaries of

Ludwig v. Superior Court in and for Los Angeles County

District Court of Appeals of California, Second District, Second Division
Sep 19, 1932
14 P.2d 321 (Cal. Ct. App. 1932)
Case details for

Ludwig v. Superior Court in and for Los Angeles County

Case Details

Full title:LUDWIG v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY ET AL.[*]

Court:District Court of Appeals of California, Second District, Second Division

Date published: Sep 19, 1932

Citations

14 P.2d 321 (Cal. Ct. App. 1932)