Opinion
1-29-1958
Matter of the ESTATE of Carrie Haseltine THOMPSON, Deceased. Don R. LEHMAN, Executor, Petitioner, Objector and Appellant, v. Howard S. CROSBY et al., Legatees and Respondents. * Civ. 22802.
McClean, Salisbury, Petty & McClean, Robert S. McClean, Los Angeles, for appellant.
Matter of the ESTATE of Carrie Haseltine THOMPSON, Deceased.
Don R. LEHMAN, Executor, Petitioner, Objector and Appellant,
v.
Howard S. CROSBY et al., Legatees and Respondents. *
Jan. 29, 1958.
Hearing Granted March 26, 1958.
McClean, Salisbury, Petty & McClean, Robert S. McClean, Los Angeles, for appellant.
No appearance for respondent.
WHITE, Presiding Justice.
Don R. Lehman appeals from 'Order Settling First and Final Account; For Allowance of Statutory Executor's Fees; For Allowance of Extraordinary Fees of Executor; Interpretation of Codicils To Will; Denial of Attorney's Fees; Order For Reserve For Closing Expenses, and For Distribution' and from the order denying his motion to 'vacate and set aside said orders aforesaid and to make new and different orders allowing said Don R. Lehman compensation for legal services rendered on behalf of the above entitled estate'.
Don R. Lehman is an attorney licensed to practice and practicing in the state of California and was attorney for the decedent, Carrie Hazeltine Thompson, in her lifetime.
While the notice of appeal is from the entire order of June 7, 1957, by his opening brief appellant claims error only with respect to the denial of his petition for statutory fees for his services as attorney for himself as executor of the estate.
Mrs. Thompson left no living blood relatives. Her hasband had predeceased her. The entire estate was separate property. By her will of December 2, 1949, she made specific bequests to her husbands' relatives, left the residue to her friend Earnest T. Emery, whom she appointed as executor. She designated appellant as attorney for the executor. Provision was added that, if Emery were unable to act as executor, appellant should do so and that he 'may employ such attorney as he deems necessary'.
By codicil dated December 1, 1951, it appears that her residuary legatee, Emery, was deceased. Additional specific bequests were made and the residue was left to three others, her nurse, her sister-in-law, and a friend, provided they should survive her.
By said codicil, paragraph Seventh of the 1949 will appointing said executor and attorney was revoked and another substituted therefor.
In another codicil dated February 24, 1955, testatrix states that 'I * * * do hereby alter and change the terms and provisions substituted for said Paragraph Seventh by Codicil bearing date December 1, 1951, to the end that Paragraph Seventh of my said Will shall be as follows:
'Seventh: I hereby nominate and appoint Don R. Lehman to be the sole Executor of this my Last Will and Testament, he to serve without bond for every purpose * * *.
'I further direct that in the event Don R. Lehman acts as Executor hereunder, and also acts as his own attorney, that he shall be allowed his fees as Executor, together with the fees which may be allowable to the attorney for the Executor.' (Emphasis added.)
Mrs. Thompson died February 22, 1956, and on March 19, 1956, upon petition of appellant in propria persona, the will and two codicils were admitted to probate; Don R. Lehman was appointed executor to serve without bond.
As shown by the First and Final Account, the inventory and appraisement was about $91,000. Sales of real and personal property above appraisal and other income brought the total estate near $98,000. The credits claimed included $2,586.75 'ordinary executor's commission--subject to the approval of court'; $2,550 'extraordinary fees to which he believes he is entitled'; and $2,586.75, statutory fees for his services while acting as his own attorney pursuant to the will and the two codicils, which he requests 'shall be construed as a gift and devise to Don R. Lehman * * *.'
On June 7, 1957, the court made its order settling said account, allowing executor's fees, statutory and extraordinatry, and distributing the estate. The court thereby found that the executor rendered all the services usually rendered by the attorney for the executor of an estate and 'that the ordinary fee which would be paid to an attorney for conducting said proceedings * * * is the sum of * * * $2,586.75'; 'that the provision for fees to Don R. Lehman, should he act as both executor, and as attorney for the executor, as set forth in said two codicils is not a valid gift and/or a bequest to Don R. Lehman for statutory fees as attorney for himself as executor'; and concluded 'that the provisions by decedent in the codicils to her will authorizing payment of both executor and attorney fees to Don R. Lehman is invalid, and, therefore, he is not entitled to receive compensation for services rendered by him as attorney for executor'; and that Don R. Lehman, acting in his own behalf as attorney for the executor herein, 'shall take nothing for his services as such attorney'.
The appeal from the order denying appellant's motion to set aside and revoke the previous order of the court will be dismissed since an order denying a motion to revoke an order is not included in the listed probate orders from which an appeal may be taken. Probate Code, section 1240.
The only question raised on the motion to vacate said order, and on the instant appeal is whether it was error to deny appellant, for his services as attorney for himself as executor, the statutory fees provided for such services.
From the language of the codicil we are satisfied that testatrix did not intend to give to anyone the amount of the statutory fee for services to be rendered by the attorney for the executor. The amount was to be paid only in the event it was earned. 'The Legislature * * * has determined that the services rendered by the administrator and by the attorney in such probate proceedings are of equal value, and that the compensation to each is a reasonable compensation for the service rendered'. In re Graham's Estate, 187 Cal. 222, 224, 201 P. 456, 458, 18 A.L.R. 631. Public policy, however, has been held to forbid the executor's acting as his own attorney and receiving compensation from the estate for legal services so rendered. '(I)t is one of the duties of a trustee to take care that no improper charges are made by persons employed for the estate. * * * (N)o person in whom fiduciary duties are vested shall make a profit off them by employing himself, because in doing this he cannot perform one part of his trust; namely, that of seeing that no improper charges are made. * * *' In re Parker's Estate, 200 Cal. 132, 137, 251 P. 907, 909, 49 A.L.R. 1025.
In re Estate of Parker, supra, 200 Cal. 140, 251 P. 910, holds that permitting an executor extraordinary fees for extraordinary services does not contemplate payment to the executor for his legal services--particularly under the facts of that case--where he had already been allowed the maximum extraordinary fee permitted for his services as executor. Although that maximum for the compensation of executors was removed by statutory amendment in 1925, no provision has yet been enacted for allowing an executor to be paid for his own services as attorney for himself as executor.
In Re Estate of Parker, supra, the executor employed a Boston firm of which he was a partner and two Los Angeles attorneys to represent him in the probate proceedings. The amounts due the two local attorneys and to the Boston law firm are not separated and the decision does not indicate what portion of the fee of the Boston attorneys would go to the executor. The order allowing attorneys fees was reversed with directions that the value of the portion of the services rendered by the executor's law firm be segregated and denied, and that the Los Angeles attorneys be paid for the portion of the work done by them.
In Re Estate of Scherer, 58 Cal.App.2d 133, 139, 143, 136 P.2d 103, 107, an appeal by the widow of decedent from an order allowing $8,000 extraordinary fees to the executor upon his claim for $20,000, this court affirmed the order and said: 'The weight of authority in this state supports the rule that where the executor, administrator or testamentary trustee is himself a practicing lawyer, and elects to act as his own attorney in the performance of the legal services incident to the administration of the estate, in the absence of some statutory provision entitling him thereto, he will not be permitted to receive an allowance against the estate for his professional services. In re Estate of Parker, 200 Cal. 132, 135, 251 P. 907, 49 A.L.R. 1025. This doctrine is founded on reasons of public policy set forth at length in a carefully prepared and well considered opinion authored by Mr. Justice Finlayson in the just cited case. It is the duty of courts to uphold this sound and wholesome doctrine, by the terms of which an attorney-executor who himself performs the legal and professional services relating to his trust shall not be allowed to charge for his own professional services'. In Re Estate of Scherer, supra, the order was affirmed because the work valued at $8,000 was not work usually done by the attorney for the executor, but work done by the executor.
In re Estate of Lair, 70 Cal.App.2d 330, 336, 339, 161 P.2d 288, 290, reversed the portion of an order settling final account of administrator and distributing assets allowing $800 to the respondent for 'his services as attorney and as Administrator' and directed that the superior court fix, separately state, and allow the fees, if any, for legal services rendered by respondent to decedent befor his death and while decedent was executor of the estate. At page 336 of 70 Cal.App.2d at page 291 of 161 P.2d, Mr. Justice Parker Wood, speaking for the court, said: 'Appellants' further contention, that a testamentary trustee who acts as attorney for himself cannot be given compensation for his services as such attorney, is sustained. * * * That rule is one of public policy forbidding one who acts in a fiduciary capacity to become his own employer. In re Estate of Parker, supra, 200 Cal. at page 136, 251 P. 907 [at page 909].'
To the same effect see In re Estate of Vokal, 121 Cal.App.2d 252, 260, 263 P.2d 64.
In Re Estate of Lankershim, 6 Cal.2d 568, 572, 58 P.2d 1282, 1284, Mr. Justice Conrey, speaking for the Supreme Court, after stating the rule hereinbefore discussed, said: '* * * Unquestionably the rule exists as stated in Re Estate of Parker, supra, and we have no disposition to modify the ruling made in that case. 'But we are further of the opinion that the case at bar presents a suitable exception to the rule set forth in the Parker Case. The rule itself is not a rule of law as distinguished from equity. On the contrary it is a statement and illustration of a principle of equity. Equity or chancery law has its origin in the necessity for exceptions to the application of rules of law in those cases where the law, by reason of its universality, would create injustice in the affairs of men. Therefore, while we recognize the equitable rule suggested by appellants as illustrated by the case of Estate of Parker, supra, we think that the case at bar involves and requires the application of further principles of equity which sustain the decision of the trial court. * * * '* * * Under these circumstances we are of the opinion that appellants are now estopped by their own conduct. They have knowingly permitted Mr. MacDonald to expend much valuable time and to give them the benefit of important services without affording to him that opportunity of self-protection to which he was entitled if there was to be any challenge to his claim for compensation.'
In the In re Lankershim's Estate, supra, the bank and the attorney for a $7,000,000 estate were appointed and served as special administrators, with the understanding expressed in court that the attorney would waive any claim to pay for services as such special administrator, and expect pay only for the legal services to be rendered by him in preserving the estate pending the appointment of a general administrator. No objection was made until after the work had been done.
Referring to the rule of the In re Parker Estate, supra, the appellant in the instant action quotes from In re Estate of Lankershim, supra, 6 Cal.2d at page 572, 58 P.2d at page 1284, as follows: 'The rule is grounded upon the principle that the administrator in selecting himself to perform the duties of an attorney for the estate would become his own employer, and would be under temptation of self-interest which might lead him to act contrary to the duties of his trust'. (Emphasis added by appellant.)
Appellant then urges that no such conflict can exist in the instant action for the reason that the executor did not select himself to act as attorney but was selected by the will of testatrix, who directed that he be allowed, in addition to the compensation earned by him as executor, 'the fees which may be allowable to the attorney for the executor'.
The executor of an estate has the duty to make his own selection of his attorney to conduct the probate proceedings. He is not bound by any provision of the will by which testator attempts to make such choice for him. In re Ogier's Estate, 101 Cal. 381, 384-385, 35 P. 900; Highfield v. Bozio, 188 Cal. 727, 207 P. 242. The facts of the instant action, despite the provision of the codicil that 'in the event Don R. Lehman acts as executor hereunder, and also acts as his own attorney, that he shall be allowed his fees as executor, together with the fees which may be allowable to the attorney for the executor', do not distinguish it from the Parker, Scherer, Lair and Vokal Estates, supra, wherein the fiduciary chose to act as his own lawyer and pay himself from the funds of the estate for services rendered to himself as such fiduciary. Nor are there any facts in the matter now on appeal constituting an estoppel as in the In re Estate of Lankershim, supra.
The right of a testatrix by will or codicil to fix the executor's compensation is not relevant to the question concerning pay for the services of the executor's attorney. Appellant has been awarded both statutory fees in the amount of $2,586.75 and extraordinary fees in the amount of $2,550.00 which he alleged to be the reasonable value of such services rendered by him as executor.
While the testatrix may set the amount to be paid to her executor for his services, he may renounce the fee set by her and collect statutory and extraordinary fees which the court may deem just and reasonable. Probate Code, secs. 901-902. Generally, she cannot control the fees to be paid to the attorney for the executor. They are controlled by statute and the discretion of the court. Probate Code, sec. 910.
The attempted appeal from the order denying the motion to revoke the order is dismissed.
The order of June 7, 1957, is affirmed.
FOURT, J., and HERNDON, J. pro tem., concur. --------------- * Opinion vacated 328 P.2d 1.