Hughes v. Ferguson

CARTER, J.

In bthis ease, Hughes, the attorney for the executor under decedent’s will in the above mentioned estate, petitioned the superior court administering probate law in the estate proceedings, to have it ordered that he be paid attorney’s fees for extraordinary services performed in opposing the proceeding in the lower court and on appeal by decedent’s widow to revoke the will of decedent as to her on the ground that she was not provided for as required by section 70 of the Probate Code, the will having been made before her marriage to decedent.

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Objections were filed to the petition and, after hearing thereon, the court found that in the proceedings for revocation of the will the widow did not challenge the validity of the will but merely alleged that it

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was revoked under section 70 which was the same as a petition to determine heirship under section 1080 of the Probate Code; that Hughes performed all the above mentioned services, but the preliminary services of bringing the parties (the legatees under the will and the widow) before the court in the revocation proceedings was his only legal duty and such services were worth $1,000; that he had no duty to participate in the trial or appellate work in the revocation proceedings, and therefore fees for such services were not proper. Accordingly the court rendered its “judgment” that Hughes was “entitled” to a $1,000 fee for the extraordinary preliminary services. He appeals, asserting that he was entitled to compensation for the services performed on trial and appeal as well.

Defendant widow now moves to dismiss the appeal by reason of the acceptance by Hughes of the $1,000. On October 3, 1955, after the court indicated what its order would be, Hughes wrote to the executor that he intended to appeal but that the only ground of appeal would be that more fees should have been allowed him and that the $1,000 to be awarded would not be affected, quoting from

Clarke

v.

Angelus Memorial Assn.,

14 Cal.App.2d 750 [58 P.2d 974], to the effect that where the question on appeal is whether the recovery should be greater than that allowed by the lower court, the acceptance of the amount adjudged due did not bar the appeal. After the order for $1,000 attorney’s fees above mentioned was made (but prior to its entry), $300 thereof was paid to Hughes by the executor on October 19, 1955, and the balance of $700 was paid on October 28, 1955. On receipt of the check for $300 by Hughes on October 24, 1955, he again wrote to the executor stating that it was accepted “without prejudice” to his “contemplated appeal from the order” allowing $1,000 because he sought a larger sum which was in accord with the case theretofore cited in the former (October 3, 1955) letter. At the time the balance of $700 was paid on October 28, 1955, he again advised the executor that it was accepted only on the condition specified in his former letters, he was not waiving his right to appeal, and would not sign or enter a satisfaction of