Estate of Tubbs

California Court of Appeal Nov 6, 1947 No. Civ. 15995Published

Before: Wilson

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Holding. The court held that an administrator and their attorneys are not entitled to extraordinary fees for services performed prior to the initiation of probate proceedings or for services that constitute ordinary duties of administration.

Issues

Whether an administrator and their attorneys may recover extraordinary fees for services performed before the commencement of probate proceedings.
Whether services such as locating assets, inheritance tax preparation, and routine legal research constitute extraordinary services compensable beyond statutory fees.

Disposition. reversed

Quotations verified verbatim against the opinion

“An administrator is not entitled to recover from the estate any expenses incurred when taking steps to apply for letters of administration”

“neither the administrator nor his attorneys are entitled to allowances for extraordinary services performed prior to the initiation of the probate proceedings.”

“Services performed in locating assets of the estate are included in the ordinary services of an executor and extra compensation is not allowable.”

WILSON, J.

This appeal is by Irene Waage, one of the heirs of decedent, from that portion of the order and decree of settlement of account and final distribution insofar as the order allows and provides for payment of $500 to the administrator as special and extraordinary fees and $900 to his attorneys (they asked for $1,500) and for $39.65 costs incurred in another proceeding to which reference will be made. The extraordinary fees petitioned for amount to more than

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one half of the value of the distributable estate remaining after deducting the costs of administration.

Before the petition for letters of administration was filed by William Ira Tubbs he received a letter from an attorney who then represented Mrs. Waage referring to a trust deed that had been executed by her to decedent during his lifetime, stating that decedent had not signed a request for reconveyance and asking Tubbs to sign an assignment to Mrs. Waage of all his interest in the deed of trust. Tubbs conferred with his attorneys who now represent him as administrator. After one or two conferences with the attorney who had written the letter, Tubbs’ attorneys advised the taking of the deposition of Mabel Inkersell, sister of Mrs. Waage, for the purpose of determining who held possession of the deed of trust. The deposition was taken pursuant to the provisions of the Code of Civil Procedure (§§2083-2089) relating to the perpetuating of testimony in cases where the

applicant

expects to be a party to an action. Tubbs, the applicant, and his attorneys knew that he as an individual did not expect to be a party to litigation. The attorneys advised proceeding under said sections of the code for the purpose of attempting to ascertain the whereabouts of the deed of trust and of determining whether it could be claimed as an asset of the estate of decedent.

Although neither the petition filed by Tubbs for the taking of Mrs. Inkersell’s deposition nor the deposition itself is in the record on appeal, references to the contents of both appear in respondent’s brief. Matters not in the record cannot, be considered on appeal.

(Nason

Estate of Tubbs

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WILSON, J.

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