Dixon v. Mounts

California Court of Appeal Mar 5, 1942 No. Civ. No. 13436Published

Before: York

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Holding. The court held that the probate court did not abuse its discretion in disallowing an executor's claims for extraordinary fees and traveling expenses incurred during ancillary administration in other states, as such expenses should be charged to the foreign estate.

Issues

Whether the probate court abused its discretion in disallowing claims for extraordinary fees and traveling expenses incurred during ancillary administration.
Whether traveling expenses for ancillary administration are properly chargeable to the domiciliary estate in California.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The question of whether an executor or his attorney is entitled to extraordinary compensation for services is a question “committed to the sound discretion of the probate court and its conclusion will not be set aside in the absence of a showing”

“Traveling expenses which pertain solely to the administration of the estate in a foreign country should be paid from the part of the estate located there.”

“The expenses pertaining to the foreign estate should be paid from that part of the estate and not from the estate in California, although the domiciliary administration is here.”

YORK, P. J. Testatrix died in Los Angeles County on July 21, 1937, leaving a will naming appellant as executor and bequeathing her entire estate to respondents, her daughters and only heirs at law. Letters testamentary duly issued to appellant on August 19, 1937, and he retained E. R. Simon as his attorney to conduct the probate proceedings in California.

In addition to real property appraised at $2,000 and a postal savings certificate valued at $25, which comprised the California estate, testatrix died seized of 1600 acres of farm land located near North Platte, Nebraska, having an appraised value of $5,000, which was leased for farming purposes under a share crop contract; and also 160 acres of farm land situated near the city of Mankato, Kansas, appraised at $1,400, occupied by a tenant but from which no income was being derived by testatrix at the time of her death.

[334]Appellant’s attorney advised him that ancillary probate proceedings were necessary in Nebraska, and that appellant could be appointed ancillary administrator if he went to Nebraska and petitioned for appointment as such. Also, that the Kansas property could be transferred directly to the respondents without further proceedings upon the filing of the will in that state.

Appellant thereupon conferred with respondents with respect to such ancillary proceedings, respondents testifying at the trial that appellant told them it was necessary for him to make a trip to the said states to handle the property there as administrator and that “it all tied in with the settling of our estate here”; appellant, on the other hand, testified he told respondents, “If I was to be appointed the administrator there it was necessary for me to go there.”

At any rate, in November of 1937, appellant made a trip to Kansas and Nebraska, and was appointed ancillary administrator of the estate in the latter state. In August of 1938, he made a second trip to Nebraska to close the ancillary proceedings and distribute the Nebraska estate and to effect a sale of the land in Kansas. For his services in connection with the Nebraska estate he received a statutory fee of $200, ánd the attorney who represented him in that state received the same amount. The Kansas land was sold for $1,600 and when the proceedings there were closed, the attorney handling the same was paid a fee of $55 and the real estate broker who negotiated the sale was paid $80.

In his final account, report and petition for extraordinary commissions and fees, and supplemental account of executor, appellant petitioned the court to allow as a charge against the domiciliary estate in California traveling expenses incurred by him on the two trips to Nebraska and Kansas in a total sum of $363.48; and also the sum of $125 in excess of his statutory fee on account of extraordinary services performed by him for the estate in making the two trips and effecting the sale of the Kansas property. He further petitioned the court for an allowance of $115 for his attorney in excess of the statutory fee allowed in the domiciliary estate for services performed by him in rendering legal advice in connection with the ancillary administration.

Dixon v. Mounts

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