Estate of Briggs

California Court of Appeal Nov 12, 1964 No. Civ. No. 7556Published

Before: Brown (Gerald)

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Holding. An order merely authorizing partial payment of attorney's fees, rather than directing or requiring such payment, is not an appealable order under Probate Code section 1240 and does not constitute res judicata. Furthermore, the trial court did not abuse its discretion in denying extraordinary fees where the litigation was unnecessary and lacked a sound basis for success.

Issues

Whether an order authorizing partial payment of attorney's fees is an appealable order and res judicata.
Whether the trial court abused its discretion in denying extraordinary attorney's fees based on a lack of benefit to the estate.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“In this case the September 1960 order does not require, instruct or direct; it authorizes the executor to make a partial payment.”

“Similarly, the September 1960 order, which merely authorized partial payments, was not an appealable order and was not res judicata to the issues herein raised.”

230 Cal.App.2d 592 (1964) Estate of EARL H. BRIGGS, Deceased. WOODROW W. BAIRD, as Executor, etc., et al., Petitioners and Appellants,

ESTHER WOOLF, Objector and Respondent.

Civ. No. 7556. California Court of Appeals. Fourth Dist.

Nov. 12, 1964. C. Duane Mooney, in pro. per., for Petitioners and Appellants.

Elliott & Aune and Arthur J. Aune for Objector and Respondent.

BROWN (Gerald), J.

This is an appeal by Woodrow W. Baird, executor of the estate of Earl H. Briggs, deceased, and C. Duane Mooney, attorney for the executor, from a portion of an order settling the fourth and final account which sustained, in part, objections by beneficiary Esther Woolf to requests for extraordinary executor's commissions and extraordinary attorney's fees.

When Briggs died in April 1958 Woodrow Baird, the decedent's attorney and a legatee under the will, was appointed special administrator. In May 1958 he was appointed executor and letters testamentary were issued.

Briggs had owned and operated a printing business. Before his death he, and after his death, the estate was involved in a series of lawsuits concerning several high-speed intertype machines. Under an agreement not to participate in fees, Baird employed his law partner C. Duane Mooney to represent him in his capacity as executor.

In August 1960 Baird petitioned the court for partial extraordinary executor's commissions and extraordinary attorney's fees. Baird alleged extraordinary executor's commissions totaling $3,700; Mooney claimed extraordinary attorney's fees totaling $4,375. In an order in September 1960 the court found the allegations of the petition to be true and authorized partial payment of $2,000 each to Baird and Mooney.

In March 1961 Baird filed the third account in which he petitioned for partial executor's commissions and partial attorney's fees. The petition mentioned the balance claimed for extraordinary commissions and fees alleged in the August 1960 petition and for extraordinary executor's commissions and extraordinary attorney's fees since that time. In April 1961 the court denied the petition without prejudice.

In June 1963 the executor filed the fourth and final account and petitioned for statutory and extraordinary executor's commissions and statutory and extraordinary attorney's fees [594]

Estate of Briggs

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