McManus' Estate, In re

• Decision Date: 25 March 1963
• Citation: 29 Cal.Rptr. 543,214 Cal.App.2d 390
• Court: California Court of Appeals
• Parties: In the Matter of the ESTATE of Glenn Allen McMANUS, Jr., Deceased (two cases). Lydia Jean McMANUS, as Administratrix of the Estate of Glenn Allen McManus, Jr., Deceased; and Schofield, Hanson, Bridgett, Marcus and Jenkins, Petitioners and Respondents, v. Paul E. SLOANE, Objector and Appellant. Paul E. SLOANE, Petitioner and Appellant, v. Lydia Jean McMANUS, as Administratrix of the Estate of Glenn Allen McManus, Jr., Deceased, Objector and Respondent. Civ. 19802, 20146.

Page 543

29 Cal.Rptr. 543

214 Cal.App.2d 390

In the Matter of the ESTATE of Glenn Allen McMANUS, Jr., Deceased(two cases).

Lydia Jean McMANUS, as Administratrix of the Estate of Glenn Allen McManus, Jr., Deceased; and Schofield, Hanson, Bridgett, Marcus and Jenkins, Petitioners and Respondents, v.Paul E. SLOANE, Objector and Appellant.

Paul E. SLOANE, Petitioner and Appellant, v.Lydia Jean McMANUS, as Administratrix of the Estate of Glenn Allen McManus, Jr., Deceased, Objector and Respondent.

Civ. 19802, 20146.

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

March 25, 1963.

Rehearing Denied April 11, 1963.

Hearing Denied May 22, 1963.

Paul E. Sloane, San Francisco, for appellant.

James F. Milne, Schofield, Hanson, Bridgett, Marcus & Jenkins, San Francisco, for respondents.

SHOEMAKER, Justice.

This is an appeal by Paul E. Sloane from certain orders of the probate court(1) discharging him as attorney for the estate of Glenn Allen McManus, Jr., and substituting other attorneys in his place; (2) denying his petition for an award of attorney's fees on account pursuant to Probate Code, section 911; and (3) allowing final distribution of the estate.

The record reveals that on May 20, 1960, Lydia Jean McManus, administratrix of the estate of Glenn Allen McManus, Jr., moved the court for an order substituting the law firm of Schofield, Hanson, Bridgett, Marcus and Jenkins as her attorneys, in place of the appellant, Paul E. Sloane.

On June 2, 1960, appellant filed a motion for (1) an order requiring the administratrix to complete the inventory of the estate and to disclose to appellant certain information claimed to be necessary to the administration of the estate, or show cause why her failure to do so should not constitute grounds for suspension or revocation of her letters of administration; and (2) an order determining that his interest in the estate, by virtue of his statutory right to attorney's fees, prevented his removal without cause.In support of this motion, appellant filed a sworn declaration averring that he had been employed in April 1958 to serve as her attorney in connection with the administration of the estate; that he had thereafter performed numerous legal services in said employment; and that nothing more remained to be done to close the estate other than to obtain the administratrix' signature on the inventory and appraisement, pay the inheritance tax, and petition on behalf of the administratrix and sole distributee for final distribution with waiver of accounting.

At the same time appellant filed a petition for allowance of attorney's fees pursuant to Probate Code, section 911, in the sum of $2,066.34, this being 90% of the statutory fees and certain added costs.In this petition appellant asserted that the assets of the estate were valued at $83,296.27.

After a brief hearing on June 2, 1960, the matter was continued until June 20, 1960, at which time both appellant and Mr. Bridgett of the proposed firm were present.Appellant opposed the substitution on the ground that he could close the estate within a matter of days if he could secure the cooperation of the administratrix.Mr. Bridgett contended that the administratrix had an absolute right to change attorneys.In regard to appellant's motion to receive immediate payment for legal services previously rendered, Mr. Bridgett pointed out that such fees were based upon the value of the estate, that no inventory or appraisal had been filed, and that he was unable to offer an opinion at that time as to the value of the estate.The trial court then offered to reimburse appellant for expenses paid and allow him $350 on account of attorney's fees.Appellant rejected the offer and the court then ruled that it would make no allocation of attorney's fees until final distribution, at which time appellant could renew his petition.

On June 22, 1960, the court entered its order of substitution.On the same day, the court ordered that appellant be reimbursed for court costs and expenses in the amount of $68.60, but that he receive no award of attorney's fees until the filing of an accounting or a petition for distribution.The court made no ruling on appellant's motion to compel the administratrix to complete the inventory and disclose information to appellant, or show cause why her letters should not be revoked for her failure to do so.Appellant filed a notice of appeal from the two orders made on June 22, 1960.¹

On May 5, 1961, the administratrix filed a verified petition for distribution of the estate and allocation of attorney's fees.An inventory and appraisement of the estate had been duly filed on November 22, 1960, showing the value of the estate to be $86,407.07, and that the whole of the estate was community property of the decedent and his surviving spouse.The petitioner, as the sole heir of the decedent, waived her right to an accounting, and showed that the statutory fee for the ordinary services rendered by petitioner's attorneys was $2,358.14.Petitioner prayed for a distribution without accounting and for an allocation of attorney's fees between appellant and the attorneys substituted in his place.

On May 12, 1961, appellant filed a motion to continue the hearing on the petition for distribution pending a final determination of his appeal from the two orders entered on June 22, 1960.

On May 18, 1961, the petition for distribution and appellant's motion for a continuance came on for hearing.Appellant asserted that there could be no distribution of the estate pending a determination as to whether he was wrongfully discharged as attorney for the estate.Appellant also objected to a waiver of accounting on the theory that he, as an attorney whose fee was based upon a percentage of the estate, was entitled to ascertain whether the inventory and appraisal did in fact include all of the assets of the estate and whether any income had accrued to the estate subsequent to the filing of the inventory.Counsel for the administratrix pointed out that estate had been pending for three years and that the administratrix now had an opportunity to sell the stock, which constituted the major asset of the estate.Appellant replied that he could undoubtedly have closed the estate within 10 days at the time that he was removed as attorney for the estate, but that he was now interested in obtaining 90% of the statutory attorney's fees and clearing up any bad reflections on his character and professional reputation.

On May 18, 1961, the court entered its order that the estate be distributed and that appellant recover 60% of the attorney's fees allowed by statute.Appellant filed a notice of appeal from this order of distribution.Pursuant to stipulation by the respective parties, the appeal from the order of distribution was consolidated with the appeal already pending from the orders of June 22, 1960.

Turning first to the order of substitution, appellant contends that an attorney for an estate may not be removed without cause because he occupies the peculiar position of a fiduciary and agent of the court whose duty it is to represent all beneficiaries under the estate.He also asserts as an additional reason that he had a power coupled with an interest by virtue of his statutory right to recover attorney's fees based upon a percentage of the estate.(Prob.Code, §§ 910,901.)

Appellant's position cannot be sustained for two reasons.First, it may seriously be doubted that an order removing an attorney for an estate and substituting other counsel in his stead is an appealable order.Probate Code, section 1240, specifically enumerates all those orders of the probate court which are appealable.No mention is made of an order either appointing or removing an attorney.The rule is well established that no appeal will lie from any order in probate not specified in Probate Code, section 1240.(Estate of Schechtman(1955), 45 Cal.2d 50, 54, 286 P.2d 345;Estate of Nersisian(1957), 155 Cal.App.2d 561, 567, 318 P.2d 168, Estate of Noonan(1952), 113 Cal.App.2d 899, 900, 249 P.2d 306.)

In any event, even if it be assumed that an order removing an attorney is appealable, the authorities lend no support to appellant's contention that an attorney for an estate, unlike other attorneys, may be removed only for cause.Code of Civil Procedure, section 284, provides in relevant part that 'The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination * * * [u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other * * *'(emphasis added).In O'Connell & Superior Court(1935), 2 Cal.2d 418, 421, 41 P.2d 334, 335, 97 A.L.R. 918, the court, in commenting upon the section, stated: '* * * it is now settled in this state that in the absence of any relation of the attorney to the subject-matter of the action, other than that arising from his employment, the client has the absolute right to change his attorney at any stage in the action, and the fact that the attorney has rendered valuable services under his employment, or that the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action, does not deprive the client of this right.'(To the same effect, seeEchlin v. Superior Court(1939), 13 Cal.2d 368, 372, 90 P.2d 63, 124 A.L.R. 719.)

In the present case, appellant had no interest in the subject matter of the action 'other than that arising from his employment' by virtue of his right to recover the fees provided by statute.Under such circumstances, his client had an absolute right to discharge him and substitute other counsel in his place.As to appellant's theory that an attorney for an estate, as a fiduciary and agent of the court, is not subject to this rule, the recent case of Houghton v. Coberly(1962), 201 Cal.App.2d 820, 822, 20 Cal.Rptr. 489, 491, is controlling....