Madsen v. Hart

SCHOTTKY, J. Fred B. Hart, administrator of the estate of Augustus Loring Hart, deceased, has appealed from an order of the superior court directing the payment of attorneys’ fees previously set by the court.

[632]In 1957 pursuant to a petition of Fred B. Hart, administrator of the estate of Augustus Loring Hart, deceased, a hearing was held on the matter on September 10, 1957. At the conclusion of the hearing the court determined that the fee for extraordinary services for the attorneys for the administrator would be $2,500. The formal decree was filed on November 26, 1957. The order contained no provision directing payment of the fee for extraordinary services. An appeal was taken by Hart from this order. (See Estate of Hart, 167 Cal.App.2d 499 [334 P.2d 588].) Among the issues raised was the propriety of the act of the court in setting the fees for extraordinary services. It was also argued “that the services of the attorney in the civil action had not been completed and that, therefore, the court was without power to fix the fees in advance of the completion of the work.” (Estate of Hart, supra, p. 505.) These contentions were rejected by this court. (Estate of Hart, supra.)

No payments were made -to the attorneys for the administrator. Both of the attorneys have died, and the executrices of the estates of the deceased attorneys sought a citation from the court to compel payment of both the extraordinary and statutory fees. At the hearing in response to the citation, Fred Hart, as administrator, sought to introduce in evidence certain correspondence between Charles O. Busick and himself to show that the extraordinary fees were to cover all of the work of the attorneys “up to and including the final decree.” The correspondence was dated after the hearing but before the entry of the decree allowing attorneys’ fees. This evidence was rejected on the ground of res judicata. An order of payment was made and this appeal followed.

Each order and decree of a superior court exercising its probate function and acting within its jurisdiction is conclusive against collateral attack unless it is void on its face. (Security-First Nat. Bk. v. Superior Court, 1 Cal.2d 749 [37 P.2d 69].) There is no question but that the court had the power to make an order allowing attorneys’ fees in the prior proceeding. (Prob. Code, § 911; Estate of Hart, supra.) If the order were within the jurisdiction of the probate court, it is conclusive even though erroneous. (Estate of Tourny, 154 Cal.App.2d 501 [316 P.2d 763].) Since this court held the order proper in Estate of Hart, supra, the order allowing attorneys’ fees is not subject to collateral attack. This, of course, does not answer the question whether the prior order allowing attorneys’ fees could be challenged by