McDonald v. Heard

This is an appeal from an order allowing attorneys’ fees for extraordinary services in the

The form of order for attorneys’ fees is a novel one. No authorities have been cited, nor has the court discovered any, which approve or condemn this method of allowing attorneys’ fees in a probate matter.

Appellant first attacks the order allowing attorneys’ fees on the ground that the order is ultra vires and void, and in this connection appellant argues that the order is too indefinite and uncertain to be capable of enforcement; and that it is, for all practical purposes, a contingent fee and therefore void. We are in accord with these contentions. Section 910 of the Probate Code provides 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.”

The material portion of section 911 of the Probate Code is as follows:

“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 ... 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.”

Under the provisions of section 911 of the Probate Code respondents had the right to petition the court for an order requiring the administratrix to pay them out of the estate a just and reasonable fee for extraordinary services performed by them for the benefit of the estate, and the court had the jurisdiction to allow such an amount as seemed to the court just and reasonable, such payment to be made forthwith. The final clause of section 911 to the effect that such payment shall be made forthwith has been interpreted to mean that prompt payment should be made when there are available funds in the estate from which the obligation may be satisfied. (Zagoren v. Hall, 122 Cal. App. 460 , 465 [ 10 Pac. (2d) 202 ].) It seems obvious from the wording of these sections of the Probate Code, however, that the allowance for attorneys’ fees to be made by the court under the code provisions should be a definite, fixed and certain cash allowance, and not a percentage of the value of assets recovered or to be recovered for the estate, particularly of assets which are not yet finally a part of the estate and which might not become or remain a part of the estate, which was the situation in the instant case at the time the order was made. The order appealed from did not actually allow or fix a fee or an amount of compensation as provided in sections 910 and 911 of the Probate Code, but rather adopted a formula or gauge or measure for determining the amount of the fee to be allowed at some future time, perhaps by some other judge, upon the happening of a future, uncertain and speculative contingency, namely, a successful termination of the appeal in the action brought by the administratrix for the recovery of property. There is no doubt that the probate court has authority to make an order authorizing an administrator to employ counsel and provide that the attorneys’ fees shall be fixed at a future time upon the completion of the services. (Ludwig v. Superior Court, 217 Cal. 499 , 501 [ 19 Pac. (2d) 984 ].) It is also true that the court may allow a certain specified sum of money to be paid for or on account of extraordinary services actually performed by counsel for an executor or administrator, but it is our conclusion that the probate court does not have the right to make an order adopting a formula or measure for determining the

The order appealed from is uncertain as to the proportion of rents, issues, profits or royalties to be paid to respondents. “A judgment or decree must be sufficiently definite and certain that it may be enforced, and constitute an estoppel between the parties.” (14 Cal. Jur., p. 954; Ellis v. Rademacher, 125 Cal. 556 , 559 [ 58 Pac. 178 ].) In their brief respondents take the position that the order is definite and certain in this regard because the order “states that the net value of the property and income, less debts, be determined at the time the litigation becomes final”. So far as the order relates to the real property which may be recovered, the time for computation is definite, for a judgment becomes final when the time for appeal has expired or the appeal is finally determined. (Code Civ. Proc., sec. 1049; 15 Cal. Jur., p. 122; Baker v. Eilers Music Co., 175 Cal. 652 , 655 [ 166 Pac. 1006 ].) But what does the order mean with regard to the rents and royalties to be received by the estate? It provides that respondents are entitled to “a sum equal to thirty-five per cent (35%) of the net value of all properties and monies, together with the accruing rents, issues and profits thereon and thereof, now recovered or which may be recovered or received and become a part of the above entitled estate ...” It further provides that “the basis for determination of the net value of said properties shall be the net value of the property and/or properties at the time such property and/or properties be finally, in said action, adjudicated a part and parcel of said estate ...” The order also sets out a detailed description of the property upon which the purported 35 per cent fee is to be computed, including the following provision: “Monies. The sum of . . . ($8,142.14) royalty monies paid to and deposited with Anglo California National Bank, Bakersfield Branch, as of October 7, 1938, by Bishop Oil Company, a corporation, . . . together with all additional and accruing royalty and/or other monies so paid and deposited subsequent to said October 7, 1938 ’ ’. The order seems to distinguish “all properties” from “monies” and

The conclusions we have reached and above expressed render it unnecessary to comment on the objection raised by appellant that the amount of the fee is excessive. We are not passing upon that issue, which is a matter generally left to the sound discretion of the probate court, based upon the necessity for and the nature of the litigation, its difficulty, the amount involved, the skill required and employed, the attention given, the success or failure of the attorneys’ efforts, including the amount of recovery, and other similar considerations, and, when the probate court has made its determination in respect thereto, its judgment will not be interfered with on appeal unless it clearly appears that there has been an abuse of discretion (11B Cal. Jur., p. 506; Estate of Parker, 186 Cal. 671 , 672 [ 200 Pac. 620 ]); and in some cases a cash fee which might happen to be equivalent to 35 per cent of the value of the property recovered could not be held as excessive.

For the reasons above set forth the order appealed from is reversed and the cause remanded for further hearing.

Barnard, P. J., and Marks, J., concurred.