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Court of Appeal, Second District, Division 5, California.

ESTATE OF Esther TRYNIN, Deceased. Richard W. ECKARDT and Pachter, Gold & Schaffer, Petitioners and Appellants, v. Marcia D'ESOPO and Sonia Meyerhof, Co–Administrators of the Estate of Esther Trynin, Objectors and Respondents.

Civ. No. B030315.

Decided: November 08, 1988

Eckardt and Ruonala and Richard W. Eckardt and Kenneth R. Ruonala;  Pachter, Gold & Schaffer and Arnold H. Gold, Los Angeles, in pro. per., and for appellants. Marcia D'Esopo, in pro. per. and for respondents.

In this opinion we conclude that the probate court cannot award an attorney extraordinary fees under the Probate Code for expenses incurred in prosecuting the attorney's petition to recover fees.


The law firm of Pachter, Gold & Schaffer (Pachter) was retained as the probate counsel for the Estate of Esther Trynin.   In this position, Pachter defended the estate in a will contest which resulted in a judgment against the estate.   Subsequently, attorney Richard W. Eckardt (Eckardt) was hired by contract to handle the appeal emanating from the will contest.   When the will contest was finally resolved, Pachter and Eckardt both filed petitions for extraordinary attorney fees and costs.   Following the co-administrators' objection to both petitions, the petitions were litigated.   After seven half-day trial sessions, the court determined the reasonable value of extraordinary services and entered judgment for Pachter in the sum of $49,980.54 and for Eckardt in the sum of $5,364.09.

Pachter then submitted a second petition for extraordinary fees requesting $61,360.25 claiming it was entitled to attorney fees and costs expended in litigating its first petition for fees.   Eckardt filed a similar petition, claiming $23,210.   The court denied both petitions indicating that “the Court does not have the authority to award compensation for services which benefit only the attorneys for the estate and do not enhance the size of the estate available for distribution to the beneficiaries thereof․”

Pachter and Eckardt separately appeal.   The co-administrators of the estate are respondents.


Pachter and Eckardt both appeal contending they are entitled to extraordinary fees for expenses incurred in prosecuting their respective petitions to recover fees.   In essence, they claim that under the Probate Code they are entitled to “fees on fees.”   We disagree.

The general rule is that counsel fees are not recoverable unless authorized by statute or enforceable agreement.  (Code Civ.Proc., § 1021;  Serrano v. Unruh (1982) 32 Cal.3d 621, 627, 186 Cal.Rptr. 754, 652 P.2d 985.) 1  Probate Code sections 901 and 910 specify the amount an attorney earns for conducting ordinary probate proceedings.  Probate Code section 910 also discusses, in conjunction with Probate Code section 902, attorney fees expended for extraordinary services.

Probate Code section 910 reads as follows:

“Attorneys for executors and administrators shall be allowed out of the estate, as fees for conducting the ordinary probate proceedings, the same amounts as [allowed to the executor or administrator] and such further amount as the court may deem just and reasonable for extraordinary services.

Extraordinary services which the attorney may apply to the court for compensation include those services by any paralegal performing the extraordinary services under the direction and supervision of any attorney.   The petition or application for compensation shall set forth the hours spent and services performed by the paralegal.”

Probate Code section 902 in pertinent part reads as follows:

“Such further allowances may be made as the court may deem just and reasonable for any extraordinary services such as sales or mortgages of real or personal property, contested or litigated claims against the estate, the good faith defense of a will which is contested after the will is admitted to probate, the successful defense of a will which is contested before the will is admitted to probate, the preparation of estate, inheritance, income, sales or other tax returns, or the adjustment or litigation or payment of any said taxes, litigation in regard to the property of the estate, the carrying on of the decedent's business pursuant to an order of the court, and such other litigation or special services as may be necessary for the executor or administrator to prosecute, defend, or perform.”

In applying these fee statutes applicable to extraordinary services, attorneys have been compensated for rendering services in many different situations such as:  to recover trustee fees (e.g., Estate of Griffith (1950) 97 Cal.App.2d 651, 656, 218 P.2d 149), to prosecute a guardian application (e.g., Riley v. Superior Court (1957) 49 Cal.2d 305, 311–312, 316 P.2d 956), to defend an executor or an administrator's accounting (e.g., Estate of Beirach (1966) 240 Cal.App.2d 864, 867–868, 50 Cal.Rptr. 5), and to defend a will contest (e.g., Estate of Beach (1975) 15 Cal.3d 623, 644, 125 Cal.Rptr. 570, 542 P.2d 994).   In all of these examples, attorney fees were appropriate because the representation “benefitted the estate in the sense of representing the decedent's desires and intentions as expressed in the will.”   (Estate of Schuster (1984) 163 Cal.App.3d 337, 343, 209 Cal.Rptr. 289.)   The estate was “benefitted,” not necessarily because the estate monetarily increased, but because the actions determined what was proper under the will.   (Estate of Halsell (1956) 138 Cal.App.2d 680, 683, 292 P.2d 300.)

In contrast, the petitions brought by Pachter and Eckardt which are in issue, requested attorney fees and costs for services performed in trying to collect their own respective attorney fees.   These claims would not “benefit” the estate and thus would not be compensable pursuant to the probate statutes.   Different from cases in which an attorney is serving to protect a matter of public concern (e.g., Serrano v. Unruh, supra, 32 Cal.3d 621, 186 Cal.Rptr. 754, 652 P.2d 985), Pachter and Eckardt are acting only to serve their own interests.

The probate statutes allow attorney fees “as the court may deem just and reasonable.”   Contrary to the suggestions of Pachter and Eckardt, the clear intent of this statutory language is to allow a court to award attorney fees when services are rendered in situations not specifically delineated in Probate Code section 902, but which services are required to “benefit” the estate in its proper administration.  (Cf. Estate of Gilmaker (1964) 226 Cal.App.2d 658, 662–663, 38 Cal.Rptr. 270.)

Pachter and Eckardt also suggest that attorney fees were appropriate because the co-administrators engaged in conduct which was meant to “punish” and thus constituted nothing more than “stonewalling.”   Pachter and Eckardt claim the co-administrators engaged in numerous activities which unnecessarily prolonged the litigation of their initial petitions for fees.   Such accusations must be addressed to the court pursuant to Code of Civil Procedure section 128.5 which authorizes all superior courts to impose sanctions incurred as a result of “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ.Proc., § 128.5;  In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1086, 243 Cal.Rptr. 398.)   The probate court, absent a properly noticed motion pursuant to Code of Civil Procedure section 128.5, did not have the authority to consider such accusations.   The parties on appeal did not raise the propriety of an award under this section, but limited the issues to those relating to the Probate Code.

The claims of Pachter and Eckardt while not convincing, are not frivolous.   Thus, we decline to award sanctions as requested by the co-administrators.

The orders are affirmed.


1.   The four exceptions to the general rule, the common fund theory (e.g., Quinn v. State of California (1975) 15 Cal.3d 162, 167–168, 124 Cal.Rptr. 1, 539 P.2d 761);  the substantial-benefit or common benefit theory, (e.g., Knoff v. City Etc. of San Francisco (1969) 1 Cal.App.3d 184, 203–204, 81 Cal.Rptr. 683), the private attorney general theory now codified in Code of Civil Procedure section 1021.5 (Woodland Hills Residents Ass'n. Inc. v. City Council (Woodland Hills II) (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200; Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 43–47, 141 Cal.Rptr. 315, 569 P.2d 1303), and the “tort of another” doctrine (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505–509, 198 Cal.Rptr. 551, 674 P.2d 253) are not applicable to the instant matter.

ASHBY, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.

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