Lankershim v. Bank of America National Trust & Savings Ass'n

CONREY, J.

This matter comes before the Supreme Court upon hearing granted after decision by the Second District Court of Appeal, Division Two. The appeal is from an order of the trial court fixing the fees of a special administrator and the fees of an attorney who acted as attorney for the special administrators.

The following facts shown by the record are here given as stated in the opinion of the District Court of Appeal:

“The deceased, Colonel J. B. Lankershim, died in New York on October 16, 1931. Mr. J. Wiseman MacDonald, who for a number of years had been the attorney for the deceased,

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had in his possession a will which he had prepared for Colonel Lankershim in 1929, by the terms of which practically the entire estate was left to Doria C. Lankershim and John I. Lankershim, children of the testator, and who are the objectors and appellants herein. Mr. MacDonald cabled the beneficiaries, who were in France, and, in accordance with the authority cabled back, presented the will for probate in the names of the son and daughter and himself, these three being the executors named in the will. A few days later Mr. MacDonald was first informed of and received from a personal attendant of Colonel Lankershim a document purporting to be a will executed by the latter two weeks before his death, by the terms of which each of the children was to receive three-tenths of the estate, one-tenth was left to Mr. MacDonald and the remainder to other beneficiaries, and in which Mr. MacDonald and Bank of America were named as executors. Mr. MacDonald then filed a petition asking that this will be admitted to probate, also signing as in the petition for probate of the prior will, as attorney for the petitioners. The probate of the later will, that of 1931, was abandoned after a contest had been filed and, in this connection, it appears that Mr. MacDonald executed to the contestants, the children and beneficiaries under the first will a transfer of any rights he might have under the 1931 will. Prior to the filing of the will of 1931 for probate, the Bank of America advised Mr. MacDonald that it desired him to represent the bank as its attorney in the probate proceedings, and this Mr. MacDonald agreed to do. In view of the contest and to preserve the estate and to do those things necessary until the executors should be appointed, Mr. MacDonald and the Bank of America were appointed as special administrators. The bank employed Mr. MacDonald to act as its attorney throughout the administration of the estate and he so acted until December, 1932, when executors were appointed. It was agreed between the bank and Mr. MacDonald that the latter would waive all right to administrator’s fees and that the bank would do practically all of the work of administration and that Mr. MacDonald should receive only the fees of an attorney for the estate.