Estate of Kerr

63 Cal.2d 875 (1966) Estate of SUE B. KERR, Deceased. ALMARIO M. AVILES, as Executor, etc., Plaintiff and Appellant,

v.

LUCE, FORWARD, HAMILTON & SCRIPPS, Defendants and Respondents.

L. A. No. 28301. Supreme Court of California. In Bank.

Jan. 25, 1966. David W. Hardin for Plaintiff and Appellant.

Luce, Forward, Hamilton & Scripps, Michael Ibs Gonzalez and Bruce A. Berry for Defendants and Respondents.

BURKE, J.

This is an appeal from an order (1) fixing attorneys fees under a contingent fee agreement executed by the beneficiary named in a document admitted to probate as the last will and testament of decedent, Mrs. Sue B. Kerr, and (2) giving the attorneys a lien on the assets of the estate to secure payment of such fees. We have concluded that the trial court correctly construed and applied the agreement, and that its order should be affirmed.

The parties agree that in August 1961 decedent made a [877] will, apparently executing two duplicate originals thereof, in which she provided in pertinent part: "I do hereby designate Almario M. Aviles as my sole heir and beneficiary"; that Aviles become her legal guardian "if and when necessary"; and appointing him as executor. After her death the public administrator found one of the documents, which had been torn across several times and then pasted together with trading stamps; the other was in the hands of Aviles, who before Mrs. Kerr's death had moved from his former home in San Diego (in the vicinity of Mrs. Kerr's home) to the San Mateo area. Aviles was not related to Mrs. Kerr.

The public administrator applied for letters of administration of Mrs. Kerr's estate. Aviles consulted with a firm of attorneys in San Mateo, who in turn sought the assistance of a San Diego firm, respondents on this appeal. In November 1962 Aviles and the two firms of attorneys entered into a written "Attorneys' Retainer Agreement," the pertinent portions of which are set forth in the margin. [fn. 1]

Thereafter the San Diego firm was successful in securing the admission of decedent's will to probate and the appointment of Aviles as executor. In so doing, the work they performed included extensive interviewing of witnesses to the will, the procuring of their affidavits, and the preparation of petition for probate of will, order admitting the will to probate, and letters testamentary. The attorneys were of the view that Aviles, by reason of being named in the will "as my sole heir and beneficiary," would be entitled to distribution of all the property of the estate, even though the will did not expressly so provide. The same firm, as attorneys of record for the executor, Aviles, also prepared the notice to