Estate of Doyle

YORK, J.

Charles A. Doyle, decedent herein, was adjudged incompetent by the Superior Court of Los Angeles County, and Alice E. S. Doyle, the respondent herein, was appointed guardian of his estate, and continued to act as the duly qualified guardian of decedent at all times thereafter until the date of his death. After the adjudication of incom

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potency, decedent conferred with appellant, an attorney at law, and requested him to institute the necessary proceedings to restore him, the said decedent, to competency. The incompetent died before these proceedings were instituted, and respondent was appointed administratrix of his estate. Appellant thereupon presented his claim for legal services rendered to decedent. An agreement for reference of the claim was entered into between these parties, and the court in due time made its order appointing a referee to try the controversy over the said creditor’s claim of $50. The referee reported as her conclusion of law that appellant had no valid claim against decedent’s estate, and recommended that the claim be disallowed. Appellant filed objections to the report of the referee, the matter was submitted to the court on briefs, and in due time the court made its order confirming the report of said referee, and denied the objections filed thereto. From such order this appeal is taken.

The referee apparently based her recommendation for dis-allowance of the claim upon section 40 of the Civil Code, the following recitation being incorporated in said report: “Sec. 40 of the Civil Code definitely defines the powers of persons whose incapacity has been adjudged, i. e., the incompetent has no right to contract.”

Appellant contends that despite section 40 of the Civil Code, legal services rendered to an incompetent are in the nature of necessaries, and that a contract to pay their reasonable value will be implied by law. In support of this theory, appellant cites several cases decided in foreign jurisdictions.

So far as the record in the instant ease shows, no express contract was ever entered into by the appellant and decedent, and therefore sections 39 and 40 of the Civil Code, which refer to express contracts, are not applicable. Under the circumstances here presented, section 38 of the Civil Code: “A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family,” may be invoked, in order to bind the estate of the incompetent upon a contract implied in law for the payment of necessaries, because we are inclined to the belief that services rendered by an attorney in an attempt to restore an incompetent to capacity should be classed as necessaries of life. Circumstances may