Wood v. Luton

SPENCE, J. The administrator appeals from that portion of an order surcharging him with $1,376 on his final account and ordering him to deposit said sum in the account of the estate. He contends that the probate court improperly ordered such surcharge in view of a prior order authorizing his compromise and settlement of a wrongful death claim. The record sustains his position.

[285]Decedent and other members of his immediate family were killed when a United States Air Force jet plane crashed into decedent’s home. The administrator commenced an action in the federal court against the United States seeking damages on behalf of the estate. In due course a stipulation in settlement of the claim was negotiated with the United States Attorney. That stipulation provided, among other things, that: (1) the United States of America would pay plaintiff, the administrator, the sum of $6,880, which would be “inclusive of costs, interest and attorney’s fees, and in full settlement and compromise” of all claims arising out of said accident; (2) the stipulation would be presented to the federal court for approval; (3) the administrator would petition the probate court “for the appropriate authority to enter into the . . . Stipulation . . . and furnish to the defendant a certified copy of the Order of such authority”; (4) there would be paid to the administrator’s attorney “out of but not in addition” to the amount of the total settlement of $6,880, the sum of $1,376 “as and for attorney’s fees for services rendered” in connection with said action; and (5) upon receipt by the administrator and his counsel of the sums indicated, the administrator, through his counsel, would file a dismissal of the action.

On May 21, 1956, upon a petition for instructions filed by the administrator (Prob. Code, § 588), the probate court made the necessary order. Following the preliminary recital that “. . . the court being fully advised in the premises, finds that it is for the best interest of the estate that the offer of the United States to settle the suit ... be accepted and the suit dismissed, upon payment to the administrator of the sum of $6,880.00 as more particularly set forth in the stipulation for compromise attached to the petition herein . . ., ” the court ‘ ‘ ordered . . . that the petitioner ... as administrator of the estate shall, upon receipt by him from the United States of America of the sum of $6,880.00, file a Dismissal with Prejudice in that certain suit . . .” in the federal court. (Emphasis added.) The order and stipulation were presented to the federal court and, the terms of compromise were there approved. (28 U.S.C.A. §§2677-2678.) Accordingly the administrator received $5,504 from the United States for the estate account, his attorney received $1,376, and the administrator filed the dismissal.