IN RE: READE'S ESTATE.

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District Court of Appeal, First District, Division 2, California.

IN RE: READE'S ESTATE. QUEIROLO et al. v. RUHLAND.

Civ. 13385.

Decided: October 24, 1947

Lawrence A. Cowen, of San Rafael, and Herbert Chamberlin, of San Francisco, for appellant. J. E. Hood, of Oakland, for respondents.

The decedent, a member of the Widows' and Orphans' Aid Association of the San Francisco Police Department, in 1942 designated ‘Olive Helen Ruhland, as executrix of my will,’ as entitled to his death benefit. He was a widower with four daughters and two sons. Another daughter predeceased him, leaving children, and one of the sons died during administration, leaving children. Decedent died in 1945 and his daughter Olive, appellant herein, was appointed administratrix of his estate. She collected the death benefit of $2654 and used it for herself.

Both the inventory and the first and final account filed in the estate failed to show the $2654 as an asset. Respondent, another daughter of decedent, filed written exceptions to the account based on appellant's failure to account for the $2654.

The court found that the money had been paid to and received by appellant ‘in her capacity as personal representative of the estate’; that her claim to the fund in her individual capacity was without right, and ordered that the account of the administratrix be surcharged with the $2654 and that such sum be included in the account for distribution. The court also found that $500 was a reasonable fee for respondent's attorney and ordered that sum paid out of the $2654 fund. From the court's order this appeal was taken.

Appellant's principal contention is that the evidence is insufficient to support the order.

The respondent relies mainly on three pieces of documentary evidence, (1) the designation of appellant ‘as executrix of my will’; (2) the resolution of the association authorizing the payment to ‘Mrs. Olive Helen Ruhland, as Executrix of my will * * * daughter and beneficiary of James E. Reade, deceased’, and (3) the receipt signed ‘Olive Helen Ruhland, as daughter and Executrix of the will of her father * * *,’ to which was attached a certified copy of her letters of administration.

To show that decedent intended Mrs. Ruhland to have the death benefit in her own right, she introduced parol evidence which went in over objection. The financial secretary of the association testified that decedent told him that appellant ‘was the one that had stayed with him; the rest of the family had married and gone away and one thing and another and that he wanted her to have this * * * benefit.’ It was stipulated that the Inspector of Police (who accompanied the secretary to decedent's home to obtain the designation) would give similar testimony. Appellant testified that when her mother died thirteen years before, her father had said she was to have the money. A daughter-in-law of decedent testified that on many occasions he had said that this money was to go to appellant.

At the same time it appears from the testimony of one of appellant's own witnesses that when decedent made the designation he acted with deliberation and with his eyes open. The financial secretary testified that after reading the designation he advised decedent that ‘it wasn't necessary for him to say ‘as executrix of my will * * *’ because it was his intention he told me at that time to leave it to [Olive] * * * all he had to say was ‘I designate my daughter Olive Helen Ruhland’' to which decedent replied that ‘he was making a will and naming her executrix * * *.’

On September 30, 1943, decedent attempted to make a will but it was denied probate because it was typewritten and not witnessed. It provided: ‘* * * I, appoint Olive Helen Ruhland, as my Executrix * * * she to dispose of all my property, both real and personal to the following Children of mine * * * Dorothy C. Queirolo, Olive H. Ruhland, Norma E. Weimers, Maxine Bradshaw, Gerald Reade share alike.’

There were two applications for letters of administration in this estate, one filed by appellant, the other by respondent. At the hearing on the account appellant was cross-examined respecting the circumstances surrounding her appointment as administratrix, as follows:

‘Q. Do you remember * * * I called the Court's attention to the fact there was this $3,000 fund * * * and you were making some claim to it? A. Yes. * * *

‘Q. Do you remember that the Court at that time gave three reasons for appointing you instead of the other petitioner? A. Yes.

‘Q. One was that you were the prior petitioner * * * and another was that you renounced or waived any claim to—— A. Yes.

‘Q. And the third, your father in the will—there was an abortive will—named you as executrix. Do you remember that? A. Yes.

‘Q. Do you recall I called this to the Court's attention, asking if you were appointed administratrix that this $3000 be considered in fixing bond and Mr. Cowen said, that's all right, and the bond should be $5000? * * * A. Yes.

‘Q. At that time you did not claim this $3,000, did you? A. Not on that particular date. * * * We had other things to take up.’

Appellant's attorney testified that he had known nothing about the insurance fund until he came into court the day of the hearing for letters of administration and that ‘When the question * * * came up I said if it belonged to the estate it will be part of the estate and that is all I could say.’

At the end of the hearing on the account the judge remarked that he had a faint recollection that appellant had disclaimed, at the original hearing, any interest in this money, and that he must have then assumed the death benefit to be part of the estate or he would not have fixed the bond at $5,000.

In addition to the parol evidence offered on the appellant's side, she presents several legal arguments.

Her first point is that the constitution and by-laws of the association formed the contract between it and the decedent, a proposition which is not, and cannot be, questioned. Valentine v. Head Camp etc., 180 Cal. 192, 180 P. 2, 3 A.L.R. 380. From this premise appellant argues that she became entitled to the fund ‘by virtue of the contract and not by succession.’ In Burke v. Modern Woodmen of America, 2 Cal.App. 611, 84 P. 275, 276, relied on by appellant, the certificate was payable to ‘[the] legal heirs * * *’ of the member and the court held that the money should be shared by them equally, regardless of the proportions in which they would take under the laws of succession. Where, however, insurance is payable to the executors or administrators of the insured ‘the personal representative must collect and administer upon it.’ Estate of Miller, 121 Cal. 353, 355, 53 P. 906, 907; see also Estate of Ward, 127 Cal.App. 347, 359, 15 P.2d 901. The language ‘as executrix of the will’ obviously means in the character of executrix. 4 Words and Phrases, Perm. Ed., page 289.

Appellant next contends that because the designation could have been made only ‘within the restricted class stipulated in the constitution and by-laws,’ the decedent's designation was inoperative and ineffectual. The authorities relied on, however, are cases where the contest was between the claimant and the insurer, and in order to get into court the claimant necessarily had to bring himself within one of the specified classes. Here there is no such issue, for the association paid without even a threat of contest, and its contract thereupon became completely performed and functus officio.

Appellant next claims that ‘the words ‘as Executrix of my will’ must be discarded as mere description and surplusage,' citing Jenkins v. Jenkins, 112 Cal.App. 402, 297 P. 56. In that case Jenkins took out insurance in favor of Hilda B. Jenkins, wife of the assured. They were later divorced and he married Hazel, who was his wife when he died. When the first wife sued on the policy the widow claimed that as Hilda was not the wife of the assured when he died, she was not his beneficiary. The court in deciding otherwise held that the words wife of the assured should be disregarded as merely descriptive of Hilda's status when the policy was written. There is a wide difference between such a case and one where the benefit is payable to a person as executrix, namely, in the character of executrix.

Prior to the designation decedent made two wills, one in 1938, and one in 1939, naming a bank as executor. Moreover, at the time of the designation there was no will extant naming appellant as executrix. With respect to these circumstances the judge said at the end of the hearing: ‘In addition to all of that this disclaimer I think Mrs. Ruhland made on that occasion; I think there is ample evidence here to warrant the court in finding that the designation referred to her as executrix even though it is not directly shown there was a will in existence at the time which named her executrix. He did say ‘as executrix’ when he drew that will [sic] and he did not strike it out although he had the assistance of these officers who testified. All they would have to do would be strike a pen through that.'

We agree that there is ample evidence to support the order as to the death benefit.

The allowance of the $500 counsel fee is also attacked by appellant.

Sec. 1021, Code Civ.Proc., provides that ‘Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; * * *.’ See also 7 Cal.Jur. p. 286. Section 1021 is made applicable to probate proceedings by section 1233, Pro. Code. O'Day v. Superior Court, 18 Cal.2d 540, 542, 116 P.2d 621, 623, holding that ‘The language of section 1233 is broad and all inclusive’.

Respondent does not direct attention to any part of the Probate Code authorizing counsel fees in a situation such as this. Section 927, dealing with exceptions to accounts is silent on the subject. Section 703 provides for the appointment of an attorney at the expense of the estate in certain contests between an executor or administrator and the estate, but it is only where a claim has been filed that that can be done (Tanner v. Superior Court, 43 Cal.App.2d 732, 736, 111 P.2d 713) and even then the attorney must first be appointed by the judge.

The three cases which respondent claims are directly in point do not touch this case.

In the Tanner case, just cited, at page 735 of 43 Cal.App.2d at page 714 of 111 P.2d the court recognized the rule in equity which respondent invokes ‘that where legal services are rendered in protecting or preserving a common fund for the benefit of some who did not participate in the labors to effect its preservation, the expense of such services including counsel fees are a proper charge against the common fund so preserved or protected [citations],’ but held it inapplicable, ruling that the statute (and not the court's equity powers) was the source of its authority. It was held that the case did not come within section 703.

Estate of Marre, 18 Cal.2d 191, 114 P.2d 591, 592, was an appeal prosecuted by a beneficiary of a trust, from an order denying his petition for an allowance from the trust funds to pay the fees of his attorney. In affirming the order the court said: ‘There is no general rule which permits the recovery of attorney's fees by a successful litigant. Compensation for the services of an attorney must ordinarily be paid by the client employing him, in the absence of exceptional circumstances, such as a special ageement or special statutory provision.’ Among other authorities the court cites sec. 1021, Code of Civ. Proc., supra. The court then refers to the rule in equity, already referred to, but holds that the petitioner's case was not within it.

In Adams v. California Mut. Bldg. & Loan Ass'n, 18 Cal.2d 487, 116 P.2d 75, the court held that the equitable rule applied, but that was a building and loan liquidation, not a probate proceeding.

None of the cases relied on by respondent is authority in her favor on this point.

Clearly there is no statutory authorization for the payment of the $500 fee, and we are satisfied that in this probate proceeding the rule prevailing in equity cannot be successfully invoked.

This appeal was taken by Olive Helen Ruhland individually and as administratrix. The order was in favor of the estate in so far as it held that the $2654 was part of the estate. Therefore she was not an aggrieved party as administratrix and could appeal from that part of the order only in her individual capacity. As to the attorney's fee she was an aggrieved party, as administratrix. Accordingly, each side (appellant, in her individual capacity, and respondent) should stand its own costs.

That part of the order determining that the $2654 fund is part of the estate and should be included therein for distribution is affirmed. That part directing the payment of the $500 fee is reversed. Costs on appeal are to be borne as indicated above.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, J., concur.