Estate of Morinini

California Court of Appeal Jul 25, 1967 No. Civ. No. 24329Published

Before: Taylor

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Holding. The probate court abused its discretion by ordering an estate to pay for the public administrator's legal fees and costs incurred in an unsuccessful petition for letters of administration where no bona fide contest or necessary legal service to the estate occurred.

Issues

Whether a public administrator is entitled to attorney's fees and costs from an estate for an unsuccessful petition for letters of administration.
Whether the mere filing of a petition for letters of administration constitutes a compensable legal service to an estate.

Disposition. reversed

Quotations verified verbatim against the opinion

“the estate is not to be charged with the fees of the attorney for the applicant.”

“The mere preparation of the petition, together with notice of hearing, does not constitute a sufficient rendition of legal services to make them chargeable to the estate”

“we conclude that it was not within the trial court's discretion to direct appellant to pay attorney's fees and costs to respondent's attorney”

252 Cal.App.2d 805 (1967) Estate of FREDERICO MORININI, Deceased. CHRISTOPHER H. HILL, JR., as Public Administrator, etc., Petitioner and Respondent,

CAROLINA MORISOLI, as Administratrix, etc., Objector and Appellant.

Civ. No. 24329. California Court of Appeals. First Dist., Div. Two.

July 25, 1967. John R. Swendsen for Objector and Appellant.

M. Michael Meheen for Petitioner and Respondent.

TAYLOR, J.

On this appeal by the administratrix of the estate of the decedent from an order directing her to pay $250 for legal services rendered to the public administrator and $12 costs of filing his unsuccessful petition, the only question is whether the court abused its discretion.

The facts are not in dispute. The decedent, Frederico Morinini, also known as Fred Morinini, a resident of Monterey County, died intestate on May 27, 1966, leaving considerable property. At the time of his death, all of his heirs, including his surviving spouse, were residents of Switzerland.

Respondent, the Public Administrator of the County of Monterey, after contacting appellant, the sister of the surviving spouse, took possession of the decedent's property, pursuant to sections 422 and 1140 of the Probate Code (the pertinent [807] portions of which are set forth below). [fn. 1] At that time, appellant agreed that respondent should apply for letters of administration and respondent retained Elwood J. Wilson as attorney to file the necessary petition and give notice of the hearing and other matters as required.

On June 29, 1966, Wilson received a telephone call from appellant's attorney who indicated that he was filing a petition for letters on behalf of appellant as the nominee of the surviving spouse. The court heard both petitions, granted appellant's petition, denied respondent's, and subsequently entered its order directing appellant to pay the legal fees and court costs incurred by respondent in filing the first petition. The only question presented is whether this order constituted an abuse of the probate court's broad discretion to fix fees (Estate of Gonzales, 93 Cal.App.2d 440, 443 [209 P.2d 21]).

Estate of Morinini

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TAYLOR, J.

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