Thompson v. Thomas

LEONARD, J., pro tem. Jean Cazaurang died in 1929, and some time thereafter, Marie Cazaurang was appointed special administratrix of his estate, and continued to act as such administratrix until her death in 1937. From the time of her appointment until her death, covering a period of several years, the respondent, A. M. Thompson, acted as her attorney for said estate, and as such rendered considerable legal sérvices for said estate. After the death of Marie Cazaurang, the San Diego Trust & Savings Bank was appointed special administrator of said estate.

Respondent filed a petition in the trial court praying that an order be made allowing him certain attorney’s fees for extraordinary services, specifying in detail the services rendered. An answer to the petition was filed by appellant, Marie Lees Thomas, an heir and beneficiary, and thereafter, on September 17, 1937, over the objection of appellant, the trial court made an order finding that fees for extraordinary services should be allowed to respondent in the sum of $2,255, and ordered the special administrator to pay the same. The appellant, being an interested party, has appealed from such order.

No executor or general administrator had been appointed, and the estate was still under special administration.

It is appellant’s position that the order was improperly made, in that, it was made pending special administration, and that any allowance for attorney's fees for any extraordinary services should be made, if at all, only after the appointment of an executor or general administrator. Sections 467 and 468 of the Probate Code and the code provisions referred to therein, are the only code sections relating to attorneys’ fees for a special administrator. Sections [507467] and 468, in so far as they relate to attorneys’ fees, read as follows:

“Section 467. . . . His (the special administrator’s) commissions and the fees of his attorney shall be fixed by the court . .-. and the total fees paid to the attorneys both of the special administrator and executor, or of the special administrator and general administrator, must not, together, exceed the sums provided in this code as compensation for the ordinary and extraordinary services of attorneys for executors or administrators. ’ ’

“Section 468. . . . When the same attorney does not act for both the special administrator and executor, or for the special administrator and general administrator, such fees shall be divided between the attorneys in such proportion as the court shall deem just. ’ ’