Hill v. Morisoli

TAYLOR, J. On this appeal by the administratrix of the estate of the decedent from an order directing her to pay $250 for legal services rendered to the public administrator and $12 costs of filing his unsuccessful petition, the only question is whether the court abused its discretion.

The facts are not in dispute. The decedent, Frederico Morinini, also known as Fred Morinini, a resident of Monterey County, died intestate on May 27, 1966, leaving considerable property. At the time of his death, all of his heirs, including his surviving spouse, were residents of Switzerland.

Respondent, the Public Administrator of the County of Monterey, after contacting appellant, the sister of the surviving spouse, took possession of the decedent’s property, pursuant to sections 422 and 1140 of the Probate Code (the perti[807]nent portions of which are set forth below).1 At that time, appellant agreed that respondent should apply for letters of administration and respondent retained Elwood J. Wilson as attorney to file the necessary petition and give notice of the hearing and other matters as required.

On June 29, 1966, Wilson received a telephone call from appellant’s attorney who indicated that he was filing a petition for letters on behalf of appellant as the nominee of the surviving spouse. The court heard both petitions, granted appellant’s petition, denied respondent’s, and subsequently entered its order directing appellant to pay the legal fees and court costs incurred by respondent in filing the first petition. The only question presented is whether this order constituted an abuse of the probate court’s broad discretion to fix fees (Estate of Gonzales, 93 Cal.App.2d 440, 443 [209 P.2d 21]).

The applicable rules are set forth in the leading case of Estate of Simmons, 43 Cal. 543, wherein the court disallowed the attorney’s fees of the public administrator, Hollub, stating at pages 547 and 548: “But the compensation allowed to an attorney for services in obtaining letters of administration for Hollub cannot be supported. The statutes regulating the settlement of estates of deceased persons, provides for the employment of attorneys in the Probate Court, at the expense of the estate, in certain enumerated instances only, and in those instances it will be found that the attorneys do not represent the administrator—they are appointed by the Court, and their general duties are not to aid the administrator but rather to resist his proceedings in so far as such proceedings may appear to be hurtful to the interests of the estate, or not warranted by the rules of law.