McMahon v. Superior Court

SPENCE, J. Petitioner seeks a writ of mandate to compel respondents to “settle and certify” the clerk’s and reporter’s transcripts on an appeal taken from a judgment entered in determination of the final account of the former special administrator in an estate proceeding. The mandamus petition was consolidated for oral argument with a motion to dismiss several appeals in this estate proceeding pending in this court. (Estate of Merrill, post, page 520 [175 P.2d 819].)

Petitioner premises his application for relief on these facts of record herein: On April 17, 1944, one Fred B. Merrill was appointed special administrator of the Estate of Rae S. Merrill, deceased. Petitioner was his attorney. On October 16, 1945, Merrill’s letters were “revoked and declared null and void as of and from the date of issuance thereof” on the ground that he had procured his appointment by a fraud upon the court, and it was ordered that he file “within 10 days ... his verified final accounting, showing . . . the condition of the estate.” One Helen Hillin was then appointed and qualified as executrix of the last will of the deceased. Thereafter and in the latter part of October, 1945, Merrill filed his final account as special administrator and referred therein to his previously rendered first and second accounts which had not been noticed for hearing at the respective dates of filing—December 19, 1944, and July 17, 1945. The accounts showed attorney fees paid to petitioner, certain fees paid to the special administrator, and other costs and disbursements. The executrix and one Evelyn- M. Aumick, pretermitted heir under the last will of the deceased, filed objections to the accounts. At the hearing of the accounting matter, [517]petitioner appeared on behalf of the former special administrator and “also in his own behalf as attorney petitioning in and by said accounts for fees” declared “in excess of $7,000.” On December 19, 1945, the court made findings of facts and conclusions of law, and rendered judgment, denying the claims of the former special administrator and petitioner, his attorney.

Among other things, the court found that Merrill was “entitled to no allowance” for fees or commissions because his “acting as special administrator delayed the appointment of the executrix herein and delayed the administration and settlement of this estate,” and by reason, of the added fact that he “was removed by this court for fraud in the procurement of his appointment and for waste”; that petitioner “was instrumental in procuring the appointment of” Merrill “as special administrator and participated in and procured the said appointment by failure to disclose all facts known to him to the judge making the appointment”; that “all acts of” petitioner had been done “in pursuance of attempts to keep said Merrill in office” and petitioner had rendered “no service [which] resulted in any benefit to the estate”; that petitioner was “entitled to no allowance for fees for extraordinary services” and Merrill was “entitled to no credit for sums paid” to petitioner; and that petitioner was entitled to “no allowance for ordinary fees” inasmuch as “the commissions for ordinary services must be divided between the attorney for the executrix and an attorney for a special administrator regularly appointed.”