Downing v. Downing

Opinion

FILES, P. J.

The matter to be decided is a motion to dismiss an appeal by a citee from an order of the probate court denying a request for an award of expenses under Probate Code section 613.

1

We have concluded that the order is not appealable.

[161]

The decedent and his son, the appellant, were attorneys, associated in a law practice. On October 27, 1978, one of the executrices of the estate filed a petition in the probate court alleging that she suspected that appellant had in his possession writings and assets belonging to the estate; and that he had failed to account to the executrices for those papers and properties. The court thereupon issued a citation requiring appellant to appear in court to be examined under oath.

On November 29, 1978, appellant appeared personally and with counsel. Appellant and one other person were examined under oath, after which, on motion of appellant’s counsel, the citation was dismissed without prejudice.

On December 14, 1978, appellant filed a notice of motion for an order directing the executrices “to pay his expenses, including $1,120 for his time and work, and including $1,380 for the work of Zetterberg & Zetterberg, plus any additional expenses, including expenses of this motion and appearing in court thereon, pursuant to the last sentence of Probate Code section 613.”

The hearing on that motion, January 5, 1979, consisted entirely of colloquy of the court and counsel. In the course of that discussion the court characterized its decision at the November hearing as follows:

“The Court: ... But if I recall the last hearing, didn’t we spend about 98 percent of the time dealing on who should be the successor . executor-administrator?

“Mr. Zetterberg: That’s true.

“The Court: And then out of hand, I dismissed the other petition?

“Mr. Zetterberg: That’s correct.