RILEY v. Naomi Blair Ruoff and Leon U. Everhart, Real Parties in Interest.*

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

Rebecca RILEY, as administratrix of the Estate of Susan Ann Blair, Deceased, Plaintiff and Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF LOS ANGELES, Defendant and Respondent, Naomi Blair Ruoff and Leon U. Everhart, Real Parties in Interest.*

Civ. 22251.

Decided: April 17, 1957

Leon U. Everhart and Montgomery G. Rice, Pasadena, for Real Parties in Interest. Pines & Walsh and Roy B. Woolsey, Los Angeles, for petitioner.

We granted certiorari in this matter to review an order of the respondent court awarding fees to an ex-guardian and to her attorney pursuant to a petition filed and order made after the termination of the guardianship proceedings and discharge of the guardian.

On August 31, 1951, the guardian filed her first and final account, report, and petition for fees of $1,750 for herself and $1,800 for her attorney. On September 27, 1951 her account was approved allowing the fees as prayed for and ordering her discharge upon turning over the guardianship estate assets to the administratrix of the estate of the deceased ward. Two months later the guardian petitioned to vacate the order of September 27, 1951, and on January 21, 1952 the petition to vacate was granted and the order settling the final account and for fees was vacated. On April 22, 1952, the guardian filed her supplemental first and final account, amended report, and petition for fees and in this petition she requested the same fee of $1,750 for herself as in the prior petition and the same fee of $1,800 for her attorney together with such additional attorney's fees as might be fixed by the court.

Without encumbering this opinion with numerous interim proceedings, it appears that in January, 1953 the guardian distributed the major portion of the guardianship estate to the administratrix of the deceased ward. More than a year after the filing of the supplemental account and petition for fees as above stated, an order was made on June 11, 1953 surcharging the guardian in the amount of $19,794.47 and ordering the guardian to distribute the remainder of the estate and to render an account of her closing expenses. The order of June 11, 1953, surcharging the guardian, approved her final account, thereby approving fees of $1,750 for the guardian and fees of $1,800 for her attorney, the prior payment of which was disclosed by an audit on file; however, that order was silent as to any additional fees to her attorney and such silence was in legal effect a denial of the petition for additional attorney's fees. Townsend v. Angellotti, 129 Cal. 466, 62 P. 59; Daniels v. Daniels, 143 Cal.App.2d 430, 439, 300 P.2d 335. In October, 1954, the guardian filed her report of closing expenses and petition for her discharge and in 1955, she filed a supplement thereto, but in neither of these petitions was there any request for the payment of additional fees to the guardian or to her attorney.

On March 25, 1955, after a contested hearing, the court approved the guardian's report of her closing expenses and ordered her discharge and the exoneration of her bond. The administratrix appealed from that order and on March 14, 1956 it was affirmed. In re Blair's Estate and Guardianship, 139 Cal.App.2d 832, 294 P.2d 521. It is appropriate to note that in its opinion, the District Court of Appeal, in referring to the order of March 25, 1955, said 139 Cal.App.2d at page 836, 294 P.2d at page 524: ‘This closing account was obviously intended to and should have set the entire matter at rest for all time. Such, indeed, is its legal effect.’ A petition for rehearing was denied as was a petition for hearing by the Supreme Court and the remittitur issued on May 14, 1956.

However, the matter was not set at rest, for on June 14, 1956, the guardian filed a petition for fees for her services covering a period of five years, alleging the reasonable value thereof at $5,000, of which she had received $1,750 on account. The same petition sought additional fees for the services of her attorney covering the same period of time and alleged the reasonable value of his services at $12,000, of which $1,800 had been paid on account and the petition likewise sought the recovery of $273.44 expenses incurred in the above-mentioned appeal and prayed that all of these amounts be declared a lien on the property of the ward then in the possession of the administratrix of the estate. Objections to this petition were filed by the administratrix and after a contested hearing, the court on November 27, 1956, granted the petition and allowed the fees and expenses as prayed and declared a first and prior lien against the property and estate of Susan Ann Blair, deceased, in the amount of $11,450 and ordered the administratrix of that estate to pay that amount to the petitioning ex-guardian.

As previously noted the exguardian and her attorney are now seeking compensation from the assets of the probate estate of the deceased ward for services rendered to the guardianship estate and are seeking such compensation by proceedings within the guardianship estate and not in the probate estate. The relief they seek in the guardianship estate is in rem in character and the power to make such award was dependent upon the court's jurisdiction over the guardianship estate at the time the petition was filed and the order made. Guardianship proceedings are in rem and are part of what are generally described as probate proceedings. In re Di Carlo's Estate and Guardianship, 3 Cal.2d 225, 234, 44 P.2d 562, 99 A.L.R. 990, and in a guardianship proceeding the court does not act as an equitable tribunal in the exercise of general equity powers; it acts in a special proceeding and by virtue of power conferred on it by statute. 24 Cal.Jur.2d 374; Smith v. Fidelity & Deposit Co., 130 Cal.App. 45, 51, 19 P.2d 1018. It is well settled that in probate proceedings over a decedent's estate, and analogically applicable to guardianship proceedings, jurisdiction over the property of the estate terminates upon the decree of distribution and the discharge of the personal representative, except so far as the retention of jurisdiction is essential to compel compliance with the order of distribution, Estate of Baird, 181 Cal. 742, 744, 186 P. 351; Estate of Evans, 62 Cal.App.2d 249, 144 P.2d 625; Estate of Reiss, 68 Cal.App.2d 128, 130, 155 P.2d 862, and that an appeal from an order of final distribution does not continue the jurisdiction of the probate court but merely transfers such jurisdiction to the reviewing court, and only in the event of a reversal of the order is jurisdiction of the probate court revived. Estate of Baird, supra, 181 Cal. at pages 744–745, 186 P. at pages 351, 352. It follows that the jurisdiction of the probate court over the guardianship estate of Susan Ann Blair terminated with the order of March 25, 1955 approving the guardian's report of closing expenses and ordering her discharge and the exoneration of her bond, except for the limited purpose of enforcement and that, therefore, the respondent court was without jurisdiction on November 27, 1956 to grant the petition of June 14, 1956 and to then award fees and expenses to the guardian and fees to her attorney as sought in said petition.

The authorities relied upon by the guardian and her attorney, Estate of Clanton, 171 Cal. 381, 153 P. 459; Estate of Schluter, 209 Cal. 286, 286 P. 1008; and In re Forthmann, 118 Cal.App. 332, 5 P.2d 472, each deal with the power of the court to impress the property of a guardianship estate, whether actually or constructively in the possession of the guardian, with a lien for fees and in each of these cases the order imposing such lien was made at a time when the court had jurisdiction over the guardianship estate and in none of them is it suggested that after the final termination of the guardianship proceedings, the court may revest itself with jurisdiction and impose a lien upon property no longer in the actual or constructive possession of the guardian.

The order of November 27, 1956 awarding fees and expenses to the guardian and fees to her attorney is annulled.

RICHARDS, Justice pro tem.

FOX, Acting P. J., and ASHBURN, J., concur.

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