Baird v. Woolf

California Court of Appeal Nov 12, 1964 No. Civ. No. 7556Published

Before: Brown, Gerald

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Holding. An order merely authorizing partial payment of attorney's fees is not an appealable order under Probate Code section 1240 and does not constitute res judicata regarding subsequent fee petitions. Furthermore, the trial court did not abuse its discretion in reducing extraordinary fee claims based on factors including the necessity and success of the litigation.

Issues

Whether a court order authorizing partial payment of attorney's fees is an appealable order and res judicata.
Whether the trial court abused its discretion in reducing extraordinary attorney's fees based on the lack of benefit to the estate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In this case the authorization of partial payment did not place a mandatory requirement upon the executor; rather, the order makes payment discretionary and lacks finality.”

“Similarly, the September 1960 order, which merely authorised partial payments, was not an appealable order and was not res judicata to the issues herein raised.”

“Allowance of attorney’s fees rests within the sound discretion of the trial court.”

BROWN (Gerald), J. This is an appeal by Woodrow W. Baird, executor of the estate of Earl H. Briggs, deceased, and C. Duane Mooney, attorney for the executor, from a portion of an order settling the fourth and final account which sustained, in part, objections by beneficiary Esther Woolf to requests for extraordinary executor’s commissions and extraordinary attorney’s fees.

When Briggs died in April 1958 Woodrow Baird, the decedent’s attorney and a legatee under the will, was appointed special administrator. In May 1958 he was appointed executor and letters testamentary were issued.

Briggs had owned and operated a printing business. Before his death he, and after his death, the estate was involved in a series of lawsuits concerning several high-speed inter type machines. Under an agreement not to participate in fees, Baird employed his law partner C. Duane Mooney to represent him in his capacity as executor.

In August 1960 Baird petitioned the court for partial extraordinary executor’s commissions and extraordinary attorney’s fees. Baird alleged extraordinary executor’s commissions totaling $3,700; Mooney claimed extraordinary attorney’s fees totaling $4,375. In an order in September 1960 the court found the allegations of the petition to be true and authorized partial payment of $2,000 each to Baird and Mooney.

In March 1961 Baird filed the third account in which he petitioned for partial executor’s commissions and partial attorney’s fees. The petition mentioned the balance claimed for extraordinary commissions and fees alleged in the August 1960 petition and for extraordinary executor’s commissions and extraordinary attorney’s fees since that time. In April 1961 the court denied the petition without prejudice.

In June 1963 the executor filed the fourth and final account and petitioned for statutory and extraordinary executor’s commissions and statutory and extraordinary attorney’s fees [594]and for final distribution. Facts justifying all claims for extraordinary executor’s commissions and extraordinary attorney’s fees were repeated. Baird's claims for extraordinary commissions totaled $5,150. Mooney’s claims for extraordinary attorney’s fees totaled $5,725.

Unlike the earlier petitions, objections to the fourth and final account were filed; oral testimony was taken; many objections were sustained. Baird’s claims for extraordinary executor’s commissions were reduced $1,000. Mooney’s claims for extraordinary attorney’s fees were reduced $3,900.

Baird v. Woolf

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