McCord v. Kristovich

Opinion

MOSK, J. Petitioner was appointed the conservator of the estate and person of George K. Harvey. Pursuant to a petition for instructions, the probate court issued an order on September 16, 1968, authorizing her to employ an attorney to travel to Scotland to locate possible heirs of Harvey and [649]to pay the attorney’s travel expenses up to a stated sum and a fee for his services.

Harvey died while the attorney was in Scotland on his mission, and the Public Administrator of Los Angeles County was appointed to administer the estate. The administrator objected to petitioner’s final account insofar as she sought to compensate the attorney for his fees and expenses in connection with the journey. He also moved under section 473 of the Code of Civil Procedure to set aside the order of September 16.1 The motion was denied, the court approved petitioner’s final account, and judgment was entered accordingly. The questions for determination on this appeal are whether the September 16 order was within the court’s jurisdiction and whether it must be given res judicata effect.

George Harvey, a recluse with substantial property, was admitted to a Long Beach hospital on July 6, 1968, with a brain tumor. He was declared incompetent a few days later and petitioner, a registered nurse who had known him since 1935, was appointed his conservator. On September 5, 1968, she filed a petition for instructions pursuant to section 1860 of the Probate Code. The section provides that the court “upon petition of the conservator, . . . after notice . . . and . . . hearing, may authorize and instruct the conservator or approve and confirm his acts in the management ... or preservation of the conservatorship property or the incurring or payment of costs ... or in the care, maintenance, support and protection of the conservatee.”

The petition for instructions alleged the following facts: Petitioner had sought the appointment as conservator only because no living relative or person interested in Harvey could be found and there was an immediate need for someone to care for his person and estate. Harvey had an inoperable brain tumor, and had not had a moment of consciousness since the appointment. Petitioner had spent many hours each day attending to Harvey, hoping, that he would regain consciousness. She had made a thorough search in an effort to determine his nearest relative, but to no avail. Petitioner believed that Harvey was born in Dunoon, Scotland, and that he had three brothers and a sister, at least one of whom had issue. An attorney had made inquiries to Scotland by mail but in that manner was unsuccessful in discovering any relatives. Petitioner believed it to be in the best interest of Harvey and his estate to locate his potential heirs, if possible. She proposed that she be áuthorized to employ her attorney to go to Scotland and that she pay him travel expenses not to exceed $2,500, as well as a fee to be thereafter determined. On September 16 the court made an order in conformity with this