ESTATE OF EHLE

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Docket Number

Docket Nos. 32367, 32368.

Attorney(S)

William A. Glynn, in pro. per., for Defendant and Appellant and Objector and Appellant. Henry T. Moore, Guy E. Ward in pro. per., and Moore Moore for Plaintiffs and Respondents and Petitioners and Respondents.

Judges

FRAMPTON, J. pro tem.[fn*] [fn*] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

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Smart Summary

Factual and Procedural Background

Gladys Schlueter Ehle was adjudged an incompetent person on October 26, 1959. A guardian of her person and a guardian of her estate were appointed. She died testate on November 15, 1962. William A. Glynn (the appellant) was named the sole residuary devisee and legatee and, together with the California Bank (later United California Bank), was appointed special administrator of her estate; special letters were issued and general powers of administration were later granted. The bank withdrew its consent to act as co-executor and letters testamentary were issued to the appellant on July 13, 1966.

Respondents filed a creditors' claim against the estate for $27,621.23 (attorneys' fees of $27,500 and expenses of $121.43) for services rendered between July 1, 1961, and November 15, 1962. That claim was denied and respondents filed an action on November 20, 1963, to establish its validity against the special administrators.

On May 24, 1963, the guardian of the estate filed his third and final account showing $206,845.90, and disclosed that he had turned over all assets to the special administrator without court order. Respondents petitioned for allowance of attorneys' fees in the guardianship matter and filed objections to the guardian's final account. The respondents' action to establish their claim against the estate was consolidated for trial with the guardianship matters. The same evidence was used to support the fees in both proceedings.

On December 21, 1966, the trial court filed findings settling the guardian's third and final account and fixed and allowed attorneys' fees of $27,500 and expenses of $121.43; those orders were entered December 29, 1966 (notice mailed December 29). In the separate action to establish the claim against the decedent's estate, judgment for $27,621.43 in favor of respondents against the estate and appellant as executor was rendered (filed December 21, 1966; entered December 27, 1966; notice of entry December 30, 1966).

On January 6, 1967, the appellant filed notices of intention to move for a new trial in both the guardianship proceeding and in the action to establish the claim against the estate; both motions were denied on February 15, 1967. Notices of appeal from both the guardianship order and the judgment establishing the claim were filed on March 16, 1967. The Court of Appeal dismissed the appeals.

Legal Issues Presented

Whether a motion for a new trial lies from an order fixing and allowing attorneys' fees in a probate/guardianship proceeding under Probate Code section 1231 (as made applicable by section 1606).
Whether a notice of intention to move for a new trial in a proceeding in which such a motion does not lie is legally effective to extend the time for appeal.
Whether the appeal from the order fixing attorneys' fees in the guardianship proceeding was timely and, if not, the effect of untimeliness on the related appeal from the judgment establishing the same claim against the decedent's estate.
Whether the probate court retained jurisdiction after the ward's death to fix and allow attorneys' fees for services rendered to the guardian and to impose a lien on assets transferred to the estate executor/administrator.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Riley v. Superior Court, 49 Cal.2d 305, 312	That the court may impose a lien on assets received by an administrator or executor to secure payment for services rendered to the guardian (authorizing lien under circumstances described in §1556.1).	The court relied on Riley to support that fees for services to a guardian may be made a charge against the ward's estate and that a lien may be imposed on assets transferred to the executor/administrator.
Estate of Clanton, 171 Cal. 381, 384-385	That the court may impose a lien on assets and that attorneys' fees for services to the guardian are proper expenses of the guardianship; filing a claim in the decedent's estate is not necessary to protect the right to collect fees in guardianship proceedings.	The court cited Clanton to confirm the guardianship court's authority to award fees after the ward's death and to impose a lien on assets transferred to the decedent's estate; and to show filing a claim in the estate was not required to obtain fees in the guardianship.
Estate of Schluter, 209 Cal. 286, 288	That attorneys' fees for services rendered to the guardian are proper guardianship expenses and need not be filed as a claim in the decedent's estate to preserve enforcement in the guardianship.	The court cited Schluter in support of the proposition that the probate court retained jurisdiction to award attorneys' fees for services to the guardian after the ward's death without the necessity of filing a claim in the decedent's estate.
Estate of England, 214 Cal. 298, 300	That a motion for a new trial does not lie from an order fixing and allowing attorneys' fees in a probate proceeding (as reflecting the scope of §1231).	The court used England among authorities to establish that motions for new trial are not available from orders fixing attorneys' fees in probate matters.
Estate of Smead, 12 Cal.2d 20, 25	That a motion for a new trial does not lie from an order fixing fees and that a notice of intention to move for a new trial in a proceeding where it does not lie is not legally effective to confer jurisdiction or extend appeal time.	The court relied on Smead to hold the appellant's notice of intention to move for a new trial in the guardianship proceeding was ineffective and did not extend the time for appeal.
Estate of Welch, 146 Cal.App.2d 534, 536-538	That a motion for a new trial does not lie from an order fixing and allowing attorneys' fees in probate proceedings.	The court cited Welch as additional authority for the proposition that motions for new trial are not available from orders fixing attorneys' fees.
Swart v. Swart, 49 Cal.App.2d 44, 47	That a final order in one proceeding may render an appeal from a related judgment moot when both rest on the same underlying rights or claims.	The court applied Swart to conclude that the final guardianship order rendered the appeal from the judgment establishing the claim against the decedent's estate moot.

Court's Reasoning and Analysis

The court analyzed the matters primarily under the Probate Code and controlling authorities. It explained that Probate Code section 1606 makes the procedures of Division 3 of the Probate Code applicable to guardianship matters "so far as they are applicable," and that section 1231 of Division 3 limits motions for new trial in probate proceedings to certain categories (contests of wills, proceedings to determine heirship and interests in estates, and cases where factual issues entitled parties to jury trial). The court concluded that a motion for a new trial does not lie from an order fixing and allowing attorneys' fees in probate or guardianship proceedings.

The court further discussed section 1556.1 authorizing the court to fix and allow attorneys' fees for services rendered to a guardian and to charge such compensation against the ward's estate; and it cited Riley and Clanton for the proposition that, where the ward has died and the guardian's assets were transferred to an executor/administrator, the court may impose a lien on those assets to secure payment.

Relying on Clanton and Schluter, the court stated that the probate court retains jurisdiction after the ward's death to settle the guardian's accounts and to award attorneys' fees and expenses without the necessity of filing a claim in the decedent's estate. The court found that respondents' filing of a claim in the estate may have been precautionary but was not required to preserve their right to fees in the guardianship proceeding.

The court held that the appellant's notice of intention to move for a new trial in the guardianship proceeding was legally ineffective because a new-trial motion does not lie in that type of proceeding; accordingly, that notice did not confer jurisdiction on the trial court to consider a new-trial motion and did not extend the time to file an appeal. The court observed that notice of entry of the guardianship order was given December 29, 1966, and the notice of appeal was filed March 16, 1967—77 days later—and therefore untimely under the Rules of Court. The appeal from the guardianship order was dismissed for lack of timeliness.

The court further reasoned that the motion for new trial filed in the action to establish the claim against the estate extended the time for appeal from the judgment in that action but did not extend the time for appeal from the separate guardianship order. Because the guardianship order fixing and allowing the fees had become final, and the judgment against the estate was predicated upon the identical claim resolved by that guardianship order, the appeal from the judgment was rendered moot and also dismissed.

Holding and Implications

HOLDING: The Court of Appeal dismissed the appeals.

Implications:

The guardianship court properly retained jurisdiction after the ward's death to settle the guardian's accounts and to fix and allow attorneys' fees and expenses, and such awards may be secured by a lien on assets transferred to an executor/administrator (as authorized by Probate Code §1556.1 and supported by cited authorities).
The court reaffirmed that a motion for a new trial does not lie from an order fixing and allowing attorneys' fees in probate/guardianship proceedings (per Probate Code §1231 as applied via §1606), and that a notice of intention to move for a new trial in such a proceeding is legally ineffective to extend the time for appeal.
The direct effect on the parties: the appeal from the guardianship order was dismissed as untimely, and the appeal from the judgment establishing the claim against the decedent's estate was dismissed as moot. The opinion applied existing statutes and case law and did not purport to announce a new rule of law.

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Estate of GLADYS SCHLUETER EHLE, an Incompetent Person. HENRY T. MOORE et al., Plaintiffs and Respondents, v. WILLIAM A. GLYNN, as Special Administrator, etc., Defendant and Appellant. Estate of GLADYS SCHLUETER EHLE, an Incompetent Person. HENRY T. MOORE et al., Petitioners and Respondents,

FRAMPTON, J. pro tem.[fn*] [fn*] Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

Gladys Schlueter Ehle was adjudged to be an incompetent person on October 26, 1959. Mae Treadwell (sometimes shown as Mary Treadwell) was appointed as guardian of her person and H. Thomas Hodges was appointed and qualified as guardian of her estate.

Gladys Schlueter Ehle died testate on November 15, 1962, in the City of Santa Monica, California. The appellant was named as the sole residuary devisee and legatee in her last will and testament. On November 23, 1962, the appellant and the California Bank, now the United California Bank, were appointed as special administrators of the estate of Gladys Schlueter Ehle, deceased, and special letters of administration were issued to them on December 4, 1962. General powers of administration were granted on December 18, 1962. The last will named the bank and appellant as co-executors. A contest to the probate of the will was filed and was later dismissed. The United California Bank, which had filed its consent to act as co-executor of the will, withdrew such consent and declined to act as such. The will and a codicil thereto were admitted to probate and letters testamentary were issued to appellant on July 13, 1966.

The respondents filed a creditors' claim in the estate of Gladys Schlueter Ehle, deceased, for $27,621.23, representing attorneys' fees in the sum of $27,500 and expenditures in the sum of $121.43 for services rendered between July 1, 1961, and November 15, 1962, to the incompetent, her estate, and to H. Thomas Hodges as guardian of the estate of the incompetent. This claim was denied. On November 20, 1963, the respondents filed their action against the bank and the appellant as special administrator with general powers of the estate of Gladys Schlueter Ehle, deceased, to establish the validity of their claim.

On May 24, 1963, H. Thomas Hodges as guardian of the estate of Gladys Schlueter Ehle, an incompetent person, filed his third and final account and report of guardian. This account showed a balance of $206,845.90, but it also disclosed that the guardian had turned over all assets in the estate of the incompetent to the special administrator of the estate of the deceased. It appears that this transfer was made without court order or approval. On June 14, 1963, the respondents filed their petition for allowance of attorneys' fees in the guardianship proceedings. Objections to the third and final account of the guardian were also filed. On December 9, 1963, the hearing on the third and final account, the objections thereto and the petition for allowance of attorneys' fees in the guardianship matter were continued to April 13, 1964. On motion of the respondents the action to establish the validity of their claim against the estate of the deceased was ordered consolidated for trial with the foregoing matters relating to the estate of the incompetent, and this action was set for trial on April 13, 1964.

After many continuances the hearing on the third and final account of the guardian, the petition for allowance of attorneys' fees, and the action to establish the claim came on for hearing. It appears that the evidence before the court to establish attorneys' fees in the guardianship matter was the same as the evidence relied on to establish the validity of the claim for attorneys' fees in the estate matter.

On December 21, 1966, the trial court made findings of fact and filed its order settling the third and final account of the guardianship matter and filed its order fixing and allowing attorneys' fees in the sum of $27,500 and for expenses in the sum of $121.43. Both of these orders were entered on December 29, 1966, and notice of their entry was mailed on the same date. In the action to establish the validity of the claim against the estate of the deceased, judgment in favor of respondents and against the estate of Gladys Schlueter Ehle, deceased, and appellant as executor was rendered in the sum of $27,621.43. Both the order and the judgment impressed a lien upon all the assets in the estate of the decedent received from the guardian of the estate of the incompetent. This judgment was filed on December 21, 1966, and entered on December 27, 1966. Notice of entry of judgment was given on December 30, 1966.

On January 6, 1967, the appellant, as former special administrator with general powers of the estate of Gladys Schlueter Ehle, deceased, and as executor of the will of said decedent filed a notice of intention to move for a new trial with respect to the order settling the third and final account and fixing and allowing attorneys' fees in the guardianship proceeding. At the same time he filed a notice of intention to move for a new trial in the action to establish the claim against the estate of the decedent. Each of these motions was denied on February 15, 1967. Notice of appeal from the order fixing and allowing attorneys' fees in the estate of the incompetent and notice of appeal from the judgment establishing the claim against the estate of the decedent were both filed on March 16, 1967.

Section 1606 of the Probate Code provides that "When not otherwise specially prescribed in this division [Division 4 relating to Guardian and Ward], practice and procedure and the making and entry of orders under this division shall be governed by the provisions of Division 3 of this code, so far as they are applicable." Section 1231 of the Probate Code, part of division 3, provides that "A motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings to determine heirship and interests in estates, and in those cases where the issues of fact, of which a new trial is sought, were of such character as to entitle the parties to have them tried by a jury, whether or not they were so tried."

[1] Section 1556.1 of the Probate Code authorizes the court, upon petition, to fix and allow attorneys' fees for services rendered to the guardian of an incompetent and to order such compensation to be a charge against the estate of the ward. Where the ward has died and the assets of the estate of the ward have been transferred to the administrator of the estate of the deceased ward or to the executor of the will of such ward, the court may impose a lien on such assets in the hands of the latter to secure the payment for such services. ( Riley v. Superior Court, 49 Cal.2d 305, 312 [ 316 P.2d 956]; Estate of Clanton, 171 Cal. 381, 384-385 [ 153 P. 459].)

[2] Section 1555 of the Probate Code provides that upon the death of the ward the court retains jurisdiction of the guardianship estate for the purpose of settling the accounts of the guardian. [3] Attorneys' fees for services rendered to the guardian on behalf of the ward and the estate of the guardianship are proper expenses of the guardian to be paid out of the guardianship assets, and it is not necessary to file a claim therefor in the estate of a deceased ward in order to protect the right to enforce a claim for such services in the guardianship proceedings. ( Estate of Clanton, supra, 171 Cal. 381, 385; Estate of Schluter, 209 Cal. 286, 288 [ 286 P. 1008].) In the case at bench, the filing of the claim for attorneys' fees and expenses in the estate of the deceased ward for services rendered to the guardian in the guardianship proceedings may have been a precautionary measure but it was not a necessary step to insure the right to collect such fees and expenses in the guardianship proceedings. The probate court retained jurisdiction in the guardianship proceedings, after the death of the ward, to award attorneys' fees and expenses for services rendered to the guardian without the filing of a claim therefor in the estate of the deceased ward.

This section reads: "The termination of the relation of guardian and ward by the death of either guardian or ward or by the ward attaining his majority or being restored to capacity shall not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the guardian. If the guardian dies or becomes incompetent, his account may be presented by his personal representative and upon petition of the successor of such deceased or incompetent guardian, the absconding, deceased, or incompetent guardian or attorney of record in the guardianship proceeding, to render an account of the guardianship to the extent that the attorney has information or records available to him for the purpose. The account of the attorney need not be verified. A fee shall be allowed to the attorney by the court for this extraordinary service. For the purposes of this section, `personal representative' shall include a guardian and conservator." court shall compel the personal representative of the deceased or incompetent guardian to render such account and must settle such account as in other cases.
"In the event the guardian dies or becomes incompetent and there is no executor, administrator, or personal representative appointed for his estate, or he absconds, then the court may compel the attorney for such

[4] A motion for a new trial does not lie from an order fixing and allowing attorneys' fees in a probate proceeding. (Prob. Code, § 1231; Estate of England, 214 Cal. 298, 300 [ 5 P.2d 428]; Estate of Smead, 12 Cal.2d 20, 25 [ 82 P.2d 182]; Estate of Welch, 146 Cal.App.2d 534, 536-538 [ 304 P.2d 57].)

[5] The provisions of section 1231 of the Probate Code are made applicable to guardianship proceedings by section 1606 of the Probate Code.

[6] The notice of intention to move for a new trial must be legally effective. If it is made in a proceeding in which the motion does not lie, it does not give the court jurisdiction to consider it and likewise does not extend the time for appeal. ( Estate of Smead, supra, 12 Cal.2d 20, 22-23; 3 Witkin, Cal. Procedure (1954) § 121, p. 2297.)

[7] The order fixing and allowing attorneys' fees and expenses in the guardianship proceeding was made on December 21, 1966, and was entered on December 29, 1966. Notice of entry of this order was given on December 29, 1966. Notice of appeal from the order was filed on March 16, 1967, 77 days after notice of entry of the order. The appeal from the order not having been timely filed (see rule 2, Cal. Rules of Court), it must be dismissed. [8] The fact that a motion for a new trial was made in the action to establish the claim against the estate of the deceased ward and extended the time for appeal from the judgment in that action did not extend the time for appeal from the order in the guardianship matter.

[9] The action to establish the claim for attorneys' fees and expenses against the estate of the deceased ward is predicated upon the identical claim for services and expenses made in the petition to fix and allow attorneys' fees and expenses for services rendered to the guardian in the guardianship proceedings. The order in the guardianship proceedings has become a final order thus rendering moot the appeal from the judgment establishing the claim against the estate of the deceased ward, and such appeal must be dismissed. (See Swart v. Swart, 49 Cal.App.2d 44, 47 [ 120 P.2d 940].)

The appeals are dismissed.

Ford, P.J., and Moss, J., concurred.