Estate of Sidebotham

138 Cal.App.2d 412 (1956) Estate of ROBERT RUSSELL SIDEBOTHAM, Deceased. W. A. ROBISON, as Administrator, etc., Appellant,

v.

SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

Civ. No. 16911. California Court of Appeals. First Dist., Div. Two.

Jan. 11, 1956. Frank J. Fontes, Delger Trowbridge and Theodore M. Monell for Appellant.

Morris Lowenthal and Juliet Lowenthal for Respondents.

NOURSE, P. J.

Appeal from an order of the probate court, given on a petition of the public administrator, as administrator of the above entitled estate asking for instructions as to his right to use the moneys in his possession as assets of said estate for the payments of costs and counsel fees--including a daily transcript--in a certain pending litigation, instructing petitioner not to disburse any of said moneys in the defense of said action.

The petition showed that an action had been filed to impress a trust on behalf of a large number of persons, called in the action "O. A. Arthur et al.," on all assets of the estate in the hands of petitioner. (The action is a representative suit by and in behalf of the members of an association who claim that said assets were diverted by decedent and another defendant from the purposes of the association for which they had been furnished by the members.) The petition alleges that the plaintiffs in said action assert that no funds in the hands of petitioner can be used in the defense of said action and that they will try to enforce a personal liability [414] for the use of such funds for such purpose because said funds are trust funds, the expenditure of which is unauthorized, contrary to law and in excess of the jurisdiction of the court. At the hearing of said petition on April 25, 1955, Mr. Trowbridge, special counsel appointed to defend the action, appearing as witness for the administrator presented a partial statement of costs incurred in the amount of $21.65 and testified that merely for costs, aside from any counsel fees, an amount of $1,000 should be available to the defending attorneys for traveling expenses and the taking of depositions to check the evidence of numerous plaintiffs and hundreds of exhibits. Mr. Lowenthal, attorney for plaintiffs, objected to the petition. He stated as his position, without presenting any evidence, that there were other attorneys defending the case for other defendants; that plaintiffs, heard as witnesses, had established a large part of the claim and that a trust as to all would be established; that no depositions had to be taken because the evidence consisted of written documents; that too much ($10,000) had already been expended for attorneys' fees in the estate; that expenditures should await the outcome of the case: "If the money belongs to the trust, nothing can be paid at all"; that Mr. Trowbridge had been engaged by two sons of deceased and was actually still their attorney (this was not conceded by Mr. Trowbridge) and that the same should incur the obligation to counsel for the defense. Mr. Trowbridge pointed out that petitioner was not requesting attorneys' fees, but Mr. Lowenthal stated that the same applied to costs, as to which thousands of dollars had been paid for useless accountants' reports and investigators' interviews and that the stated requirements as to costs were too vague.