State v. Probate Court of Hennepin County
| Decision Date | 18 November 1938 |
| Docket Number | No. 31816.,31816. |
| Citation | 283 N.W. 545,204 Minn. 5 |
| Parties | STATE ex rel. LARSON v. PROBATE COURT OF HENNEPIN COUNTY et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Frank E. Reed, Judge.
Certiorari proceeding by the State, on the relation of Alma Larson, against the Probate Court of Hennepin County, Minn., and Max Shapiro to reverse an order of the Probate Court allowing attorney's fees and disbursements. From an order quashing the writ, the relator appeals.
Order reversed and cause remanded for further proceedings.
Erland Lind, of Minneapolis, for appellant.
Max Shapiro, of Minneapolis, for respondents.
This is an appeal by Alma Larson, executrix of the last will and testament of her mother, Jennie A. Larson, deceased, from an order of the district court of Hennepin county quashing a writ of certiorari sued out upon her application to review certain proceedings had in the probate court of that county. Hereafter we shall refer to Alma Larson as appellant, and, as the only adverse party in interest is Max Shapiro, we shall refer to him as respondent, the probate judge being only theoretically involved.
Respondent had been engaged by appellant to do some legal work for her in connection with the administration of the mentioned estate. While the proceedings in the probate court were still pending, respondent obtained and still retains $600 of estate funds, which sum he claims the right to retain to apply as part payment of attorney's fees in connection with professional services claimed to have been rendered in the administration of the estate. A dispute having arisen between these parties in respect to his right to retain this fund and the amount and extent of his fees in the matter, respondent, in August, 1937, filed a petition in the probate court wherein he claimed to be entitled to an attorney's fee of $1,300 for professional services rendered, and reimbursement for an additional sum claimed to have been advanced in behalf of the estate. He sought a lien on the assets of the estate for the payment of his services and expenses, and asked that the court adjudge a lien thereon for the payment of such amount as the court should find he was entitled to receive, and directing the executrix to pay such amount out of estate funds. A citation to show cause was issued and served upon appellant. She answered, denying respondent's claims, although admitting that some service had been rendered. As new matter he was charged with misconduct and negligence in the performance of his professional work. And there are many other allegations, the nature and extent whereof we need not further recite. Respondent replied, putting in issue the new matters pleaded. These issues were later heard by the court, resulting in an order allowing respondent attorney's fees in the amount of $1,100 and the amount claimed by him as reimbursement for money expended. The court ordered appellant "as executrix" to pay respondent the sum so allowed, deducting therefrom the $600 already received by him.
Appellant appealed to the district court from this order, but on respondent's motion that appeal was dismissed, the court being of opinion that the order was not appealable. Later appellant petitioned the probate court to vacate and set aside the order of allowance, taking the position that the court was without jurisdiction to fix and allow attorney's fees where, as here, there was a contest in respect to the amount thereof, and the propriety and value of respondent's fees and lien claim were the subjects of conflicting claims and interests and as such not within probate jurisdiction. That matter was also duly heard, but the court adhered to its former ruling. To review that order appellant applied to the district court for a writ of certiorari to the probate court, the purpose being to reverse the order allowing attorney's fees and disbursements for lack of jurisdiction on the subject matter there involved. The district court upon hearing quashed the writ. The memorandum indicates that the court was of opinion that the question of jurisdiction had been waived inasmuch as appellant had in substance and effect "petitioned the probate court for the allowance of attorney's fees."
The important, and we think determinative, question here is whether the probate court had jurisdiction of this kind of issue. The record is perfectly clear that the parties to this controversy consented to determination by that court of their conflicting claims. If consent could confer jurisdiction then plainly their conduct precludes any notion to the contrary.
For appellant it is said and ably argued that the probate court was wholly without jurisdiction "to try or determine any controversial issue" between the representative and his attorney, hence that the proceedings had are a nullity and the order here for review "must be vacated and set aside" on appellant's petition, she being "a party in interest"; and that the relief sought may be granted "at any time, even if the right to take an appeal from it to a higher tribunal or to have it reviewed by a higher tribunal in any manner whatsoever has been barred by the lapse of time or otherwise."
1 and 2. Our constitution, Art. 6, § 7, provides that the probate court "shall have jurisdiction over the estates of deceased persons and persons under guardianship." In State ex rel. Nelson v. Probate Court, 199 Minn. 297, 303, 304, 271 N.W. 879, 882, we said: "While thus original `jurisdiction of the administration proceeding, and of matters necessarily incident thereto, is exclusive and complete in the probate court' and `in administering the estate it applies equitable principles and exercises equitable powers,' it nevertheless possesses `no independent jurisdiction in equity or at law over controversies between the representatives of the estate, or those claiming under it, with strangers claiming adversely, nor of collateral actions.'" (Citing cases.)
There the conflict arose because the probate court sought to exercise jurisdiction in a case involving relief sought from an improvidently made contract entered into by the executrix acting as such (and in her individual capacity also) and testator's copartners in business ventures, the basis for the proceeding being founded upon fraud, and that testator's property interests were involved. We held "that the constitutional limitation of the jurisdiction of our probate courts necessarily excludes the equity power to rescind contracts between an executor, administrator, or guardian and a third party, otherwise a stranger to the res, is the settled rule of our decisions." (Citing many cases.) Cases from other jurisdictions, speaking generally, hold that probate courts have no jurisdiction 1 Woerner, Am.Law of Administration (3 ed.) § 152, and cases under notes 5 and 6. And the author in the same section goes on to say that "while the court may make an allowance to an administrator who performs services for the estate, as an attorney at law, not within the scope of his duties as administrator, * * * it has no jurisdiction to order the payment of counsel fees by the administrator." So, too, debts created after the death of the intestate or testator cannot be proved in probate court, nor can that court adjust the rights or equities arising out of the sale of real estate, or out of a vacation of the sale, between the purchaser and administrator. The same general rule applies in respect of attorney's services. The rule is thus stated in 2 Woerner, Am.Law of Administration (3 ed.) § 356 "* * * the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney." (Numerous cases are cited by the author sustaining the text.)
3. In the performance of his official duties it is of course important that the executor or administrator secure the advice of competent counsel. There may be much to do requiring the expert services of a competent attorney. For this reason it has been generally held to be entirely proper that the probate court allow the representative suitable credit for reasonable fees for such services paid by him in good faith. Many states have provisions for such employment and for allowance to the representative of proper credits for such payments. Our statute, 3 Mason Minn.St.1938 Supp. § 8992-118, provides: But the allowance is to the representative as such, not to the attorney. State ex rel. Nordin v. Probate Court, 200 Minn. 167, 273 N.W. 636. This subject is well treated in 3 Woerner, Am.Law of Administration (3 ed.) §§ 515 and 516, and numerous cases from the various jurisdictions may there be found.
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