Dobbins v. Title Guarantee & Tr. Co.

CARTER, J. In 1935, plaintiff and defendant were appointed co-executors of the will of Caroline W. Dobbins, deceased. An account current was filed in the estate proceedings by the two executors, claiming $7,287.33 as compensation, $4,000 of which had been paid; and further claiming that they had rendered extraordinary services for which they would claim extra compensation in the final account, That account was settled. Thereafter a final account and petition for extraordinary fees was filed. It was alleged in the petition that defendant had performed extraordinary services for which it was entitled to compensation in the sum of $15,000, and a prayer was made for that amount. It was signed for plaintiff by defendant and also by defendant and the attorneys for plaintiff and defendant. Notice of hearing therein was given by posting. The court approved the account and ordered that $15,000 be paid to defendant as co-executor for extraordinary services rendered by it. The ordinary fees were divided equally between the executors. The extraordinary fee of $15,000 was paid to defendant. Plaintiff commenced the instant action to recover one-half of the latter fees, claiming that he was entitled thereto under an oral agreement between plaintiff and defendant made before the fees were awarded. The trial court found that the agreement had been made, and that the issue had not been determined by the order of the probate court allowing extraordinary fees to defendant, and gave judgment in favor of plaintiff for $7,500.

Whether or not a superior court sitting as a probate court has jurisdiction to determine the rights, as between co-representatives of an estate to the compensation awarded, where there is an alleged agreement between them relating to the division of the compensation, and the validity or invalidity of such an agreement, depends upon the power possessed by that court generally with respect to the apportionment of fees. Section 900 of the Probate Code authorizes the allowance of compensation to representatives of estates of deceased persons. Section 901 fixes the compensation on a percentage [67]basis, and provides: “If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by each.” Section 902 empowers the court to make further allowance for extraordinary services performed. The latter compensation is subject to the above-quoted provision with respect to apportionment among several representatives, inasmuch as that provision refers generally' to compensation of several representatives not merely to ordinary compensation alone. It cannot be doubted that that clause confers upon the probate court jurisdiction to apportion ordinary or extraordinary compensation between co-representatives in accordance with the services performed by each, at least in the absence of an agreement between them. It expressly states that the court shall apportion the fees according to the services actually performed. It has been held that the probate court has such power and that a superior court cannot interfere with the exercise of it. (Hope v. Jones, 24 Cal. 89.) Any agreement with relation to the division of fees even if it is to be carried into effect after the' allowance is made by the court, necessarily involves the very issue to be determined by the court, that is, the extent and character of the services rendered by each, and the portion of the compensation to which each is accordingly entitled. Both the agreement and the adjudication by the court cover the same subject matter. As a necessary incident of its general power to apportion the compensation on the basis of services performed, it should also determine the validity and effect of any agreement affecting that subject matter. Sound judicial policy dictates that all of the issues should be determined in one proceeding, rather than by piecemeal litigation. If the agreement is invalid because violative of public policy or for any other reason, that should be settled in such proceeding. If the probate court made an apportionment on the only basis it could, according to the services performed, and ignored any agreement of the parties on the subject, its order might well be meaningless. Another court might decide that the agreement was valid and enforceable and thereby, in effect, apportion the fees in an entirely different manner. The result would be a vacation of the probate order, and render ineffective its judgment. It is not supposed that the jurisdiction of the probate court was to be so limited as to render the exercise of its power of apportionment ineffectual. Al