Estate of Kessler

32 Cal.2d 367 (1948) Estate of DOROTHY WALKER KESSLER, Deceased. C. M. LINTON, as Guardian Ad Litem, etc., Respondent,

v.

FRED WALKER et al., Appellants.

L. A. No. 20413. Supreme Court of California. In Bank.

Aug. 10, 1948. Boller, Suttner & Boller and Thomas R. Suttner for Appellants.

C. M. Linton, in pro. per., and Leon W. Delbridge for Respondent.

TRAYNOR, J.

Dorothy W. Kessler died on April 16, 1946, leaving a will in which she named her father and mother, Fred and Lulu Walker, executors and trustees of her estate. The sole beneficiary of the will and testamentary trust was Karen Dee Kessler, the infant daughter of the testatrix. The admission of the will to probate was contested by the husband of the testatrix. Respondent, an attorney at law, was appointed guardian ad litem of the infant and participated in the settlement of the contest. The will was admitted to probate, and Mr. and Mrs. Walker were appointed executors of the estate. Respondent petitioned the probate court for attorney's fees to be paid out of the estate for his services for the benefit of the infant in the settlement of the will contest and the court entered an order directing the executors to pay him $3,500. The executors appeal from this order.

Respondent contends that the appeal should be dismissed on the grounds that the order directing the payment of fees is not an appealable order, and that the appellants are not "aggrieved" parties entitled to maintain an appeal under section 938 of the Code of Civil Procedure, which provides: [369] "Any party aggrieved may appeal in the cases prescribed in this title."

[1] Section 1240 of the Probate Code provides: "An appeal may be taken to the supreme court from an order ... instructing or directing an executor or administrator; directing or allowing the payment of a debt, claim, legacy or attorney's fee. ..." The order directing the allowance of attorney's fees to respondent is clearly an appealable order within the meaning of this section. (See Estate of Mitchell, 20 Cal.2d 48, 50 [123 P.2d 503]; Howaldt v. Superior Court, 18 Cal.2d 114, 116 [114 P.2d 333].)