Estate of Thompson

SHENK, J.

This is an appeal by Don R. Lehman from an order denying his petition for an allowance of attorney’s fees in addition to an allowance of executor’s fees. He had acted in the dual capacity as executor and attorney for himself as executor in proceedings for the probate of the estate of Carrie Haseltine Thompson, deceased.

Mr. Lehman, hereinafter designated the petitioner, is a duly licensed attorney at law and in the lifetime of the decedent acted as her attorney. By a second codicil attached to her will she nominated him as her sole executor and further directed, “that in the event [he] acts as Executor hereunder, and also acts as his own attorney ... he shall be allowed his fees as Executor, together with the fees which may be allowable to the attorney for the Executor.” Mrs. Thompson died February 22, and on March 19, 1956, on his own petition, the petitioner was appointed executor of her will. She left no immediate family, her beneficiaries being her nurse, certain friends, and various “in-laws.” The value of the estate was slightly less than $100,000. The appellant acted both as executor and as attorney throughout the proceedings in probate and in his final account sought and was allowed the statutory executor’s fees as well as extraordinary fees. He also sought an additional allowance of $2,586.75, that being the amount which ordinarily would be fixed as the fee for the attorney for the executor in accordance with statutory provisions. (Prob. Code, §§ 901, 910.) The trial court found that the legal services rendered to the estate by him were valued in the amount sought, but concluded that the provision in the will for the additional payment of attorney’s fees was void. The allowance was accordingly denied.

The general rule with reference to the question involved is set forth in the

Estate of Parker,

200 Cal. 132 [251 P. 907, 49 A.L.R. 1025], wherein the court denied the payment of statutory attorney fees to a law firm of which the executor was a partner. It was stated at page 135 of the opinion in that case: “ [I] f the executor . . . being himself a practicing lawyer, elects to act as his own attorney in the performance of the legal services incident to the administration of the estate, the general rule is that he will not be entitled to an

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