Estate of Swanson

California Court of Appeal Jun 18, 1959 No. Civ. No. 5867Published

Before: Shepard

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Holding. The court held that a probate court may award attorney's fees to a party who successfully objects to an executor's account, that statutory fees are calculated based on net rather than gross proceeds when property is encumbered or business operations are involved, and that an administrator may be personally liable for litigation costs incurred without just cause.

Issues

Whether a probate court may award attorney's fees to a beneficiary who successfully objects to an executor's account.
Whether statutory administratrix and attorney fees should be calculated based on gross or net proceeds from the sale of encumbered property and business operations.
Whether an administrator may be surcharged for litigation costs incurred without just cause.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The probate court may make an allowance of attorneys' fees for services rendered to a party who successfully objects to charges against an estate in an executor's account.”

“The general rule appears to be that where property subject to an encumbrance is sold, the executor is entitled only to commissions on the net purchase price in excess of the encumbrances.”

“In the operation of a business the executor is bound to, and should, only account to the estate for the net income or profits.”

171 Cal.App.2d 437 (1959) Estate of OPAL MAE SWANSON, Deceased. ESTHER L. GRAMLING, Individually and as Administratrix With the Will Annexed, etc., et al., Appellants,

JANE SWANSON ANDERSON, as Guardian, etc., Respondent.

Civ. No. 5867. California Court of Appeals. Fourth Dist.

June 18, 1959. F. W. Powell for Appellants.

John R. Hellen for Respondent.

SHEPARD, J.

Opal Mae Swanson died testate on June 8, 1954. Esther L. Gramling, her sister, was appointed special administratrix of her estate on June 11, 1954, and administratrix of the estate (with the will annexed) on July 23, 1954. She is one of the appellants herein. The legatees are Mrs. Bertha Sweeney, mother, $100; Helen N. Sweeney, sister, as to one-eighth; Robert Francis Ellis, a stranger, as to one-eighth; Jon Brent Dulong, a step-grandson, as to three-eights; and Marcia Ann Gramling, a niece, as to three-eighths; each [439] of the fractions used above referring to the interest in the residuary estate. F. W. Powell, one of the appellants herein, is attorney for said administratrix. Jane Swanson Anderson is the guardian of the estate of Jon Brent Dulong, a minor, above named, and is an objector to certain items of the final account of said administratrix, and is the respondent herein.

Appellant Gramling on July 23, 1957, filed her final account, report and petition for distribution, and her amendment and supplement thereto on August 27, 1957. Appellant Powell filed a separate petition for attorney fees on August 30, 1957. Respondent Anderson filed her objections to the final account on August 8, 1957, and her amended objections on August 20, 1957.

Respondent by her objections asked the disallowance of all trial and appellate court costs, fees and other expenses in connection with certain estate litigation arising out of an attempted sale of the motel property (the principal asset of the estate) to one Springgate. This sale of the property the court refused to confirm because there was attempted to be included therein certain personal property belonging to the estate of John Swanson, the predeceased husband of the testatrix herein. Respondent also asked the disallowance of $306.26 interest plus $20.65 and costs awarded to Springgate when the sale was set aside; $22.15 for flowers to the mausoleum; $6,499.50 alleged to have been lost to the estate through the later sale at a reduced price from that offered by Springgate; $3,294.49 expenses of sale; $239 on claim of F. W. Powell's attorney fees for services to decedent, and $115.30 paid to creditors without the filing of a claim; $28.52 refund to ultimate buyer of the motel because of error in escrow calculations; $1,000 alleged to have been improperly claimed for extraordinary services in managing the motel; $5,700 plus certain office expenses alleged to have been improperly claimed for attorney services, and a portion of the ordinary statutory administratrix and attorney fees alleged to have been improperly calculated.

Estate of Swanson

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SHEPARD, J.

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