Estate of Witting

California Court of Appeal Jan 31, 1955 No. Civ. No. 20360Published

Before: Shinn

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Holding. The court held that attorneys for life beneficiaries are not entitled to compensation from the trust estate for services that did not demonstrably preserve or increase the trust assets, as the trial court's finding that the attorney's efforts did not cause the retention of the assets was supported by the evidence.

Issues

Whether the trial court erred in finding that the services of the beneficiaries' attorney did not result in the preservation or benefit of the trust estate.
Whether the attorney for life beneficiaries is entitled to compensation from the trust estate under the common fund doctrine when the court finds no causal link between the attorney's efforts and the preservation of trust assets.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the time and effort expended by Mr. Perkins did not result in the preservation of the trust assets or a benefit to the trust estate and the beneficiary remaindermen.”

“His services, of course, were to be evaluated as of the time they were concluded, and not under conditions existing nine years later.”

130 Cal.App.2d 521 (1955) Estate of EIKA V. WITTING, Deceased. THOMAS A. HANNA et al., Appellants,

J. HOWARD STEENSEN, Individually and as Trustee, etc., et al., Respondents.

Civ. No. 20360. California Court of Appeals. Second Dist., Div. Three.

Jan. 31, 1955. Hall & Kent, Cameron & Perkins, Simpson, Wise & Kilpatrick, George E. Wise and John R. Kent for Appellants.

Fogel, McInerny & West, Moe M. Fogel, William J. Taft, Frank J. Kanne and Joseph J. Burris for Respondents.

SHINN, P. J.

By decree of distribution under the will of Eika V. Witting, deceased, two trusts were established which provided for the payment of income to life beneficiaries and disposed of the remainders. J. Howard Steensen was appointed trustee of each trust. Among the assets were 350 shares of stock of Jergins Oil Company in one trust and 200 shares in the other. No provision for sale of stocks was made in the decree of distribution. In March 1942, the trustee petitioned the court (Judge Paonessa presiding) for instructions relative to the sale of securities and reinvestment of the funds (Prob. Code, 1120). It was alleged in the petition: "That as to the Jergins Oil Company stock, the fact that it is closely held, not saleable on the open market, and operated without the usual quarterly statements, required of stocks sold on the exchanges, might make its sale difficult in times of stress and its price fluctuation hard to follow." At the time of the hearing, Johanna Steensen Wilken by her attorney, Dean Perkins of Cameron & Perkins, resisted the petition by answer which denied the allegations with respect to the Jergens Oil Company stock and certain other stock of Southern California Edison Company, and prayed that the petition for sale of those stocks be denied. Mr. Perkins was employed by Johanna Steensen Wilken and presented the opposition on her behalf. He was not employed by and did not represent the trustee. By an order which recited "... it appearing to the Court that it is not for the best interests of the Trust Estates that any sale of securities be made at this time," the trustee was given power to sell the securities if the court gave approval upon a hearing after notice to the beneficiaries of the time and place of any hearing for the sale thereof.

The Jergins Oil Company stock was appraised at $40 per share, or a total of $22,000. In April 1951, the stock of both trusts was sold for a total of $246,092, or about $450 per

Estate of Witting

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SHINN, P. J.

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