In re Estate of Kruger

HENSHAW, J. These are separate appeals by the residuary legatees and devisees under the will of W. H. Kruger, from the order of court fixing the attorney’s fees of the attorney of [392]the executor, and ordering payment of the amount from the funds of the estate.

J. L. Merguire, an executor of the estate of W. H. Kruger, presented his fifth annual account, and at the same time tendered his resignation as executor, to take effect upon its settlement. He also petitioned the court to determine the compensation to which he was entitled. Due notice was given of the hearing of all these matters; a hearing was had, the account settled, and the compensation of the executor fixed. Thereupon Merguire presented an application to the court setting forth that as executor he had employed J. M. Walling, attorney at law, on behalf of himself and his eo-exeeutrix, as their attorney at law in the matter of the estate; that Walling had rendered valuable services to the estate, for which he had been compensated only in part, and that such services had been rendered upon an agreement between himself and Walling that the amount of the latter’s compensation should be determined and fixed by the court. He, therefore, requested the court to fix the amount of compensation for the services of the attorney. Ho notice of this application was given to the heirs, devisees, and parties in interest. In fact, no notice whatever was given. But the court proceeded forthwith to take testimony, notwithstanding the protest of one of the residuary legatees, who happened to be present, and who insisted that in the absence of notice the court was without jurisdiction to pass upon the matter. The court made its order directing the representatives “to pay to said J. M. Walling, Esq., from the funds of the said estate the sum of seven thousand five hundred dollars.”

The order is an appealable order. (Stuttmeister v. Superior Court, 72 Cal. 487; In re Kasson’s Estate, 119 Cal. 489.) The compensation of the attorney of the executor, while not a claim against the estate, is an expense of administration, allowed to the executor, the amount of which is to be fixed by the court and paid out of the estate (In re Levinson, 108 Cal. 450); but such an order for the payment of money, by which the property of the heirs, legatees, and devisees is to be taken from them, cannot be made without notice to them, and an opportunity to be heard. It cannot require the citation of authority [393]