Tanner v. Superior Court

MOORE, P. J. A writ of review was issued to the superior court sitting in probate for the purpose of having this court determine whether or not that court was without jurisdiction to make its order for the payment of certain counsel fees for services rendered by respondent attorney to the estate following his appointment by such judge.

Following the decease of John L. Best, petitioner qualified as administratrix of his estate. She filed her inventory disclosing that the estate consisted of various stocks and bonds but she averred therein that the assets named were not the property of decedent but that they were her very own. She then instituted a separate action at law entitled Eva M. Tanner v. Estate of John L. Best et al., whereby she sought to quiet title in herself to all of the assets of the estate. Copies of the summons and complaint were served upon the judge of the court who had granted her letters of administration. In turn, that judge made an order purporting to appoint respondent Joseph A. Ball, as attorney for the “estate of John L. Best” deceased, to defend this estate against petitioner's action. Following the trial, judgment was entered in petitioner’s favor. From the judgment entered an [734]appeal was taken to this court. We found no error in the findings of fact but reversed the judgment and directed the dismissal of the action against the “Estate of John L. Best” on the ground that there was no defendant before the court, (Tanner v. Best, 40 Cal. App. (2d) 442 [104 Pac. (2d) 1084].) Thereafter, on November 15, 1940, the court which was administering the Estate of Best, after a hearing on the order to show cause and objections thereto, made its order December 20, 1940, that the administratrix herein, Eva M. Tanner, pay $500 out of the assets of the Best estate to Joseph A. Ball in full compensation for his services in conserving and preserving intact the assets of said estate.

Petitioner contends in her petition that the superior court acted in excess of its jurisdiction and that the order requiring petitioner to pay him $500 is void. Respondent Ball contends that the judge was authorized to appoint an attorney to defend the interests of the estate to the end that the title to its assets would not be clouded by petitioner’s action; that the court’s power was not dependent upon statute, but that its power to appoint counsel to defend the estate is the proper exercise of its equity jurisdiction.

Respondent Ball’s position cannot be maintained. As pointed out in our former opinion, no one who had an interest in the estate was served with summons except respondent Ball who filed a disclaimer. No one interested in the estate appeared to contest petitioner’s action to quiet title. But petitioner proceeded upon the erroneous theory and the judge conceived that he was authorized by section 703 of the Probate Code to appoint respondent Ball to defend the estate against petitioner’s lawsuit. There is nothing in that section which authorizes the probate judge to appoint counsel to defend an action brought against the estate by its administrator when the very basis of that action denies the existence of any estate of decedent. The purpose of that section was to facilitate the defense of claims for money made against the estate. It distinctly provides that if the administrator is a “creditor” of decedent and files his claim with the clerk, the clerk must present it for allowance or rejection to the judge and if the judge rejects the claim and action be instituted thereon, the “summons must be served upon the judge who shall appoint an attorney at the expense of the estate to defend the action.” Nowhere does it appear in the record that any sort