Partridge's Estate, In re

• Decision Date: 12 April 1968
• Docket Number: CROCKER-CITIZENS
• Citation: 261 Cal.App.2d 58,67 Cal.Rptr. 433
• Court: California Court of Appeals Court of Appeals
• Parties: In the matter of the ESTATE of Charles P. PARTRIDGE, Deceased.NATIONAL BANK as the Executor of the Will of Charles P. Partridge, deceased, Petitioner and Respondent, v. CENTRAL VALLEY NATIONAL BANK, Objector and Appellant. Civ. 24796.

Page 433

67 Cal.Rptr. 433

261 Cal.App.2d 58

In the matter of the ESTATE of Charles P. PARTRIDGE, Deceased.

CROCKER-CITIZENS NATIONAL BANK as the Executor of the Will of Charles P. Partridge, deceased, Petitioner and Respondent, v. CENTRAL VALLEY NATIONAL BANK, Objector and Appellant.

Civ. 24796.

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

April 12, 1968.

Older, Hahn, Cazier & Hoegh, Los Angeles, for appellant.

Erskine & Tulley, San Francisco, Hagar, Crosby & Rosson, Oakland, for respondent.

AGEE, Associate Justice.

Central Valley National Bank, claiming to be a creditor of the subject estate, appeals from an order allowing the payment of attorney's fees from the funds of said estate. (Prob. Code, § 1240.)

Charles P. Partridge died on January 5, 1966, leaving a witnessed will dated May 19, 1965 and codicils thereto dated May 28 and October 21, 1965. The appraised value of his estate, subject to administration, exceeds $591,000.

On January 11, 1966 the executors nominated by decedent, Frances W. Partridge, his widow, and Crocker-Citizens National Bank (hereafter 'Crocker'), filed a petition for the admittance to probate of said will and codicils.

On February 1, 1966 C. Robert Partridge and Calvin S. Partridge, sons of decedent, filed a contest to the probate of said will and codicils.

On February 3, 1966 a petition was filed for the admittance to probate of decedent's will dated February 28, 1962. The widow filed a contest to this will on February 15, 1966.

On April 14, 1966 the widow filed a petition requesting that, in the event the will dated May 19, 1965 be denied probate, a prior will be decedent, dated April 19, 1965, and a codicil thereto, dated May 4, 1965, be admitted to probate; further, that in the event both of these wills were denied probate, a will of decedent dated March 18, 1965 be admitted to probate.

Contests to the probate of these wills were filed by the two sons above named and Reynolds Partridge, decedent's third son. All contests were thereafter consolidated for trial.

Prior to September 27, 1966 the parties to the respective contests settled their differences and the will of May 19, 1965 and the codicils thereto were admitted to probate on October 3, 1966.

In the meantime, on August 3, 1966, appellant had filed a creditor's claim based upon alleged fraud by decedent in connection with certain business transactions. The claim requests actual damages of $300,000 and punitive damages of $900,000. It was rejected by the executor. Appellant's action on said claim against the estate is presently pending in the superior court.

On September 27, 1966, a Petition for Allowance of Fees for Extraordinary Services of Attorneys was filed and was regularly noticed for hearing on October 7, 1966. The fees requested were for legal services performed in connection with the will contests described above.

On said October 7, the court made its order allowing the law firm the Hagar, Crosby & Rosson the sum of $22,000 and the law firm of Erskine & Tulley the sum of $8,000 for said extraordinary services. The order directed Crocker, as executor, to pay said amounts from the funds of the estate. The reasonableness of these fees is not questioned.

On February 6, 1967, as 'a creditor in the above-entitled estate,' appealed from said order, contending that such attorney's fees should not be charged against the estate because the estate, as distinguished from the beneficiaries, was not benefited by such services.

The respective briefs of the parties on the merits of the controversy are on file. In addition, respondent Crocker has filed a motion to dismiss the appeal. Our ruling on this motion makes any further discussion unnecessary.

MOTION TO DISMISS APPEAL

This motion is based upon the ground that appellant is not a party to the proceedings in which the order appealed from was made, did not appear or participate in said proceedings, and did nothing to become a party thereto after the order was made.

Code of Civil Procedure, section 938, made applicable to probate matters by Probate Code, section 1233, provides that 'Any Party aggrieved may appeal * * *.' (Emphasis added.)

The proper procedure for an alleged creditor of an estate who feels aggrieved by an order of the probate court, and did not participate in the proceedings in which the order was made, is to move to set aside or vacate such order and then, if the motion is denied, appeal from the order of denial.

The rule is stated as follows: 'Even though a person's rights or interests are injuriously affected by a judgment or an appealable order, he cannot appeal therefrom unless he is a party to the proceedings. To this end he may make himself a party to the record by moving to set aside the judgment or order, and may then obtain a review thereof on appeal from an order denying his motion. Such a procedure can scarcely be said to make him a party to the action, but it does make him a party to the record, and, as such, entitled to appeal.' (3 Cal.Jur.2d, Appeal and Error § 107, p. 560.)

In Elliott v. Superior Court, 144 Cal. 501, 77 P. 1109, creditors of a corporation in receivership petitioned in certiorari for a review of orders of the superior court allowing attorney's fees and directing that the same be paid by the receiver out of funds of the corporation in his hands.

The creditors had no notice of the proceedings before the lower court in which the orders were made and did not appear or participate therein.

The Supreme Court denied the petition, saying: 'It has been settled as a rule of practice by a long series of decisions that only a Party to the record can appeal, and other rules of practice equally well settled have remedied any inconvenience that might have resulted from this construction of section 938, so that there is no reason now to depart from it, if there ever was. These petitioners do not appear * * * ever to have been parties to the record, either of the action or the proceeding resulting in the orders of which they seek a review.' (Page 507, 77 P. page 1111.)

'It is clear, we think, that the petitioners are not parties to the record, and that they have no right to prosecute a direct appeal from these orders.' (Page 508, 77 P. page 1112.)

The court then pointed out: 'There is (a) * * * plain, speedy, and adequate remedy allowed by our practice to one whose rights or interests are injuriously affected by the judgment or by any appealable order of a court given or made in an action or proceeding to which he is not a party. He may make himself a party by moving to set aside such judgment or order, and, if his motion is denied, may, on appeal from that order, have the proceeding of which he complains reviewed not only for excess of jurisdiction, but for error.' (Page 509, 77 P. page 1112.)

The court therefore dismissed the petition 'without prejudice to the right to proceed by motion and appeal.' (Page 510, 77 P. page 1113.)

Elliott was cited with approval in Eggert v. Pacific States Savings and Loan Company, 20 Cal.2d 199, 124 P.2d 815. This was a class action brought by plaintiff on behalf of himself and some 1,500 other certificate holders. He obtained a judgment of over $1,800,000 against the defendant savings and loan company.

The court made an order fixing the amount of attorney's fees to be paid to plaintiff's attorneys from the funds in the hands of the receiver for the defendant company. Two of the certificate holders appealed from the order.

Chief Justice Traynor, for the court, held: 'The motion to dismiss the appeal is properly made, for it is a settled rule of practice in this state that only a party to the record can appeal. (Citations.) Appellants were not named as parties to the action nor did they take any appropriate steps to become parties to the record. The fact that their names and the extent of their interest in the action appeared in an exhibit attached to the complaint and the judgment did not make them parties to the record. (Citations.) * * * Appellants had ample opportunity even after the court had made its orders to become parties of record by moving to vacate the orders to which they objected. They...