Glover v. Whiteside

FOURT, J. This is a consolidated appeal in two cases: in one case, John E. Glover is appealing from the judgment and order denying his motion for a new trial concerning objections filed by him to the current account and report of J. 0. White-side, as executor of the estate of Theresa Padula; and in the other case John E. Glover is appealing from the judgment and order denying his motion for a new trial wherein with respect to a previously rejected claim against the estate of Theresa Padula he was awarded judgment in the sum of $4,000, but the payment thereof was made subordinate to the payment in full of the claim of one Louis Padula against said estate in the sum of $2,063.48.

On appeal it is urged that the trial court erred in failing and refusing to surcharge the executor in the sum of $1,665 for amounts heretofore paid in the estate proceeding for certain services which were rendered prior to the death of Theresa Padula in the guardianship proceeding, wherein the court allowed said fees but did not order them paid, said fees consisting of the sum of $1,000 paid to Donald Paul Covert as attorney for the guardian, the sum of $500 paid to J. O. Whiteside as guardian, and the sum of $165 paid to P. W. Create as a real estate broker. It is further contended that none of the above items is entitled to any preference; that the estate is a deficiency estate and that each of the above items should be reduced pro rata with all general claims.

Appellant concedes that the court in the guardianship proceeding could have created a lien upon the assets in the guardianship estate, and that such a lien could have survived a transition of the original property into new assets which were the equivalent of the original property. Appellant states his [682]position to be as follows: “The only theory upon which that portion of the judgment can be sustained is upon the basis that the Court impliedly ordered and established an equitable lien in favor of the parties against the funds and assets which had come into the hands of the executor or held they already had one by operation of law without an order.” Appellant argues that the existence of power to create such a lien does not signify that a lien is created in the absence of an order creating it, and he then concludes that an order in the guardianship proceeding specifically establishing a lien upon the assets in the guardianship proceeding would necessarily be prerequisite to the existence of a lien on assets in the probate estate.

In Estate of Clanton, 171 Cal. 381 [153 P. 459], upon which appellant relies, the guardian rendered his account to the administrator, who admitted the existence of the guardian’s claims. Objections thereto were filed by heirs. Certain of the expenditures had been made by the guardian without formal allowance previously made by the court, and the guardian had presented no creditor’s claim against the estate of the deceased incompetent. The primary asset of the estate consisted of certain real property which was leased at the date of death of the incompetent. The guardian surrendered the property to the administrator who was authorized to and did sell the interest of the estate in said real property and the administrator received the proceeds therefrom. It was contended that the guardian’s lien was destroyed by the sale. In its opinion, the court stressed the fact that the proceeding was in equity, and then stated (at p. 385) : “It is the guardian’s duty after the death of the ward to settle his account with the court or with the administrator. (Code Civ. Proc., § 1754, subd. 3.) To be sure, the provisions of that section refer to obligations which may be enforced under the guardian’s bond, but they accurately define the duties of the guardian. The court of equity having the entire matter before it, could declare the existence of the lien upon the proceeds of the sale of the land, and could direct the payment of the amount due the guardian out of that sum.” (Emphasis added.) The court further states (at p. 387) : “It was proper for the court to allow the expenses incurred in the settlement of the account, including the fees of the attorney for the guardian."