Wilson v. Halsell

BARNARD, P. J. This is an appeal from an order allowing attorneys’ fees for extraordinary services.

Mrs. Halsell died leaving a will naming her sister as sole devisee, with a nephew as contingent beneficiary. The will appointed the nephew as executor or, if he was unwilling to act, appointed the sister as executor. Both declined to act and O. L. Halsell, husband of the deceased, was appointed administrator with the will annexed. After an inventory was filed, the sister filed a petition alleging that it failed to disclose all of the property of the estate in that it did not include certain interests in community property owned by the deceased, and praying that the administrator be required to include such community property in the inventory. In a pretrial order the court ordered a trial first on the issue as to whether or not the decedent had, by the terms of the will, disposed of any community property interest. Trial was had on this issue, resulting in findings and judgment to the effect that the will disposed of the separate property of the decedent only and did not dispose of any community property. On appeal, that judgment was affirmed. (Estate of Halsell, 133 Cal.App.2d 665 [284 P.2d 821].) In that proceeding, and on that appeal O. L. Halsell was represented in his capacity as administrator by the regular attorneys [682]for the estate, and was also represented in his individual capacity by other attorneys.

The proceeding now before us involved an application for attorneys’ fees for extraordinary services performed by the firm of attorneys who represented Halsell in his capacity as administrator. The petition alleged the performance of certain services in connection with settling a dispute with the sister as to the ownership of certain articles of household furniture, and the segregating of said articles after a settlement of this dispute. It also alleged, in considerable detail, the work done in connection with the litigation over the construction of the will. The sister and the nephew objected to the allowance of extra attorney fees for such services, on the grounds that the services in connection with the dispute over personal property were ordinary services; and that the services in connection with the litigation over the construction of the will were rendered for the benefit of the administrator personally and not for the benefit of the estate, and were rendered in an attempt to deprive the estate of part of its assets. The petition and the objection thereto were verified and the matter was submitted without further evidence being received. The court allowed $2,040 as attorney fees for extraordinary services performed by the attorneys for the administrator as such, and the sister and nephew have appealed from that order. No fees were asked for or allowed for the attorneys who represented the administrator personally.