Lagersen's Estate, In re

• Decision Date: 14 December 1962
• Citation: 26 Cal.Rptr. 783,210 Cal.App.2d 788
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Hazel D. LAGERSEN, Deceased. William H. McPHERSON, Petitioner and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, the First Church of Christ, Scientist, in Boston, Massachusetts, Objectors and Respondents. Civ. 20433.

Page 783

26 Cal.Rptr. 783

210 Cal.App.2d 788

In the Matter of the ESTATE of Hazel D. LAGERSEN, Deceased.

William H. McPHERSON, Petitioner and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, the First Church of Christ, Scientist, in Boston, Massachusetts, Objectors and Respondents.

Civ. 20433.

District Court of Appeal, First District, Division 2, California.

Dec. 14, 1962.

Rehearing Denied Jan. 2, 1933.

Hearing Denied Feb. 6, 1963.

Henry C. Clausen, Sheldon C. St. Clair, Clausen & St. Clair, San Francisco, for appellant.

Lillick, Geary, What, Adams & Charles, Robert R. Vayssie, San Francisco, Thomas J. Cunningham, John E. Landon, Berkeley, Donald L. Reidhaar, San Francisco, for respondent First Church of Christ, Scientist.

KAUFMAN, Presiding Justice.

This is an appeal by William H. McPherson, the special administrator and administrator with the will annexed, from an order of the probate court partially granting his petition for allowance of extraordinary fees to himself as special administrator and administrator with the will annexed, and extraordinary fees to Henry C. Clausen, the attorney for the special administrator and administrator with the will annexed. The major contention on appeal is that the trial court abused its discretion in failing to grant adequate extraordinary compensation to the appellant and his counsel for their services.

We turn first to respondents' contention that the appeal from the portion of the order relating to the extraordinary fees for the attorney of the special administrator and administrator with the will annexed should be dismissed because the appellant is not an 'aggrieved party' to that portion of the order. Section 1240 of the Probate Code expressly provides that an appeal may be taken from an order directing or allowing the payment of an attorney's fee or refusing to make any such order. However, only aggrieved parties may appeal (Prob.Code, § 1233; Dode Civ.Proc. § 938). The attorney for the representative of an estate has a standing to sue for his fees and to appeal from an order denying them in whole or in part (Estate of Merrill, 29 Cal.2d 520-523, 175 P.2d 819; Prob.Code, § 911), but the only case where an attorney may proceed independently and maintain an action or an appeal is for services rendered during administration of the estate (Stafford v. Superior Court, 1 Cal.2d 321, 34 P.2d 998; Prob.Code, § 911; Estate of Pailhe, 114 Cal.App.2d 658, 251 P.2d 76). An attorney who contributes to the creation or prevention of a common fund has a standing to appeal from an order denying him an award or compensation (Estate of Bullock, 133 Cal.App.2d 542, 284 P.2d 960). An executor or administrator can appeal from an order directing the payment of attorney fees if the payment will diminish the assets of the estate which it is his duty to protect against unwarranted claims (Estate of Kessler, 32 Cal.2d 367, 196 P.2d 559), although he is no longer personally liable for attorney fees (Houghton v. Coberly, 201 A.C.A. 893, 897, 20 Cal.Rptr. 489; Zagoren v. Superior Court, 117 Cal.App. 548, 551, 4 P.2d 279; Estate of Kelleher, 205 Cal. 757, 272 P. 1060). The precise question here presented, although noted soon after the 1905 and 1909 amendments to sections 1616 and 1619 of the Code of Civil Procedure, the predecessors of sections 904, 910 and 911 of the Probate Code, has not been decided (Estate of Murphy, 171 Cal. 697, 701, 154 P. 839). In the instant case, the alleged inadequacy of the extraordinary fees to the attorney for th administrator would appear to be beneficial to the estate, rather than detrimental, but at the same time embarrassing to the due administration of the estate (Estate of Colton, 164 Cal. 1, 5, 127 P. 643). Furthermore, some of the services for which extraordinary compensation is sought, preceded the appointment of the administrator and Mr. Clausen as his attorney. We do not, however, need to decide the question.

The record indicates that the respondents have raised this matter for the first time on appeal and did not object to the issue below or to the appellant's extensive testimony relating to the extraordinary services performed by Mr. Clausen. We also note that the notice of appeal was signed by Mr. Clausen on behalf of the appellant. In view of these circumstances, and our policy of hearing all appeals on their merits, we hold that the respondents have waived any objections to appellant's appeal from the portion of the order relating to the extraordinary fees granted to Mr. Clausen.

We turn now to a brief summary of the events leading to this litigation. The decedent, Hazel S. Lagersen, died on May 28, 1957, leaving two documents purporting to be valid wills, one executed in 1949, the other in 1957. For a period of about 10 years before her death, the decedent suffered from severe mental disorders and had been a patient in several institutions. The 1949 document left $1,000 to her son, Victor Lagersen, with the bulk of the estate going to the residuary legatees, the Scottish Rite Consistory of San Jose, and the respondents, The Regents of the University of California, and The First Church of Christ, Scientist, in Boston. The 1957 document, which was holographic in character, completely omitted Victor Lagersen and named as sole legatee the Grand Loage of Free and Accepted Masons.

Thus, after the death of Mrs. Lagersen, the following parties attempted to represent her estate and establish rights to her property: (1) the Grand Lodge of Free and Accepted Masons, then represented by Henry C. Clausen, filed a petition for the probate of the 1957 will; (2) the respondents, The Regents of the University of California, and The First Church of Christ, Scientist, in Boston, filed objections to the probate of the 1957 will and offered the 1949 will, which named them as residuary legatees; (3) the public administrator of Solano County filed a petition for letters, alleging the intestacy of the decedent; (4) appellant, William McPherson, the decedent's attorney and the personal representative of the estate of her predeceased husband, representing the Grand Lodge of Free and Accepted Masons and the Crocker-Anglo National Bank, which was named as executor of the 1949 document, filed petitions for appointment as special administrator and administrator with the will annexed; (5) Victor Lagersen, the son of the decedent, was then a resident of Louisiana, and through Carl B. Fountain, filed a petition for letters of administration, alleging intestacy, and threatened to contest the probate of both the 1949 and the 1957 wills. All of these petitions were individually set for hearing by counsel for the interested parties and finally after a series of conferences and settlement talks between the various parties and their attorneys, a meeting was held on September 9, 1957, at which all the claimants were represented by their counsel and a compromise agreement was approved in order to avoid the complex litigation raised by the many claimants to the estate, and to create a tax saving. During these negotiations, appellant served as the attorney for Victor Lagersen.

Under the terms of the compromise, Victor Lagersen and the respondent, The Regents of the University of California, were each to receive one-third of the estate; the respondent, The First Church of Christ, Scientist, in Boston, and the Grand Lodge of Free and Accepted Masons, and the Scottish Rite Consistory of San Jose, were each to receive one-ninth of the estate, the division to all parties to be made after payment of all taxes and other expenses. The compromise plan required a successful contest to the 1957 document, admission of the 1949 document to probate, resistance of the public administrator's petition, renunciation of its executorship by the Crocker-Anglo National Bank, as well as the establishment of Victor Lagersen's residence in California, so he could request the appointment of the appellant as special administrator, as the appellant was familiar with the personal affairs of the decedent and was a resident of the county of probate.

The compromise was effected on October 28, 1957, the 1949 will was admitted to probate, and appellant appointed as special administrator with the will annexed; the public administrator's appeal was successfully opposed (Estate of Lagersen, 169 Cal.App.2d 359, 337 P.2d 102), and after additional litigation relating to the proper court to hear the appellant's first and final account (Regents v. Superior Court, 185 Cal.App.2d 806, 8 Cal.Rptr. 629), on January 21, 1960, appellant filed his second and final account, requesting compensation for his extraordinary services in the amount of $10,000 and requesting extraordinary compensation for his attorney in the amount of $10,000. Respondents filed their objections. After several days of hearings on the matter, the probate court entered its order granting extraordinary fees as follows:

                                 WILLIAM H.     HENRY C
                "ITEM            MC PHERSON     CLAUSEN
                                Administrator   Attorney
                -----------------------------------------
                Sale of real
                  property         $125.00     $  100.00
                Sale of Stocks     $250.00     $  250.00
                All tax work       $500.00     $1,000.00
                                -------------  ----------
                                   $875.00     $1,350.00"
                

As the court denied appellant's petition as to all other matters, this appeal ensued.

The only question presented by this appeal is whether the trial court abused its discretion in allowing the appellant and his attorney inadequate extraordinary fees. The allowance of extraordinary fees rests in the sound discretion of the trial court whose ruling will not be disturbed on appeal in the absence of a manifest showing of abuse (Estate of McLaughlin, 43 Cal.2d 462, 468, 274 P.2d 868).

Appellant first argues that the trial court erred in...