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

William Branch RILEY, also known as William Brand Riley, Plaintiff, Appellant and Respondent, v. Hallie Ford TURPIN, Defendant, Respondent and Appellant.*

Civ. 18282.

Decided: October 16, 1959

Hilary H. Crawford, Hilary H. Crawford, Jr., San Francisco, for appellant. Russell T. Ainsworth, San Francisco, for respondent.

This appeal arises out of award of attorneys' fees in an action for partition of real property. Defendant was the owner of a life estate in the property with a contingent remainder in the fee dependent upon her surviving plaintiff, and plaintiff owned a contingent remainder in the fee dependent upon his surviving defendant. The trial court ordered partition, determining the value of the contingent remainders (76.59% for that of plaintiff and 23.41% for that of defendant) on the basis of the life expectancies of the parties. On appeal, the Supreme Court held that the trial court had erred in failing to include the value of defendant's life estate in its apportionment of the proceeds of sale of the property. Riley v. Turpin, 47 Cal.2d 152, 301 P.2d 834.

On further trial, the value of the life estate was fixed at $2,652.79, and the interlocutory decree was modified to provide that defendant should receive that amount in addition to the proportion of net sales price attributable to her contingent remainder. After sale pursuant to the interlocutory decree of partition, the trial court, by its final order, fixed $2,000 as the amount to be awarded to each party for attorneys' fees. While the order on its face is somewhat ambiguous, the parties agree, and the various proceedings below indicate, that its effect is to charge these fees only to the proportionate shares awarded the parties on account of their contingent remainders, with no fees to be deducted from the amount awarded defendant for her life estate. Plaintiff appeals only from the portion of the order which allows defendant her attorney's fees, and from that portion which charges such fees only to the proportionate allowances representing the value of the contingent remainders.

‘(R)easonable counsel fees, expended by the plaintiff or either of the defendants, for the common benefit * * * must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein * * *’. Code Civ.Proc. § 796.

The clear holding of the Supreme Court on the previous appeal is that defendant's life estate is an interest in the property divided. It follows that the value of that estate must be added to the value of defendant's contingent remainder in determining her proportionate interest for purposes of allocating the counsel fees allowed.

Defendant argues that the modified interlocutory decree, which had become final, determines that such fees shall be charged only against her contingent remainder interest. But that decree specifically reserved the issue of attorneys' fees for later determination. This is in accordance with the rule that counsel fees cannot be allowed until the final judgment. Elbert, Ltd. v. Federated Income Properties, 120 Cal.App.2d 194, 209, 261 P.2d 743; Williams v. Wells Fargo Bank & Union Trust Co., 56 Cal.App.2d 645, 652, 133 P.2d 73; Broome v. Broome, 179 Cal. 638, 645, 178 P. 525. It is clear that plaintiff's failure to appeal from the interlocutory judgment does not bar his raising the issues of amount and allocations of attorney's fees on this appeal.

Defendant argues that the sums due to plaintiff under his lien for property taxes paid by him during defendant's occupancy of the premises also must be held subject to proportionate charge for counsel fees. But the decision on the previous appeal determined that plaintiff paid these taxes only when defendant ignored her obligation to do so that he was subrogated to the lien of the state therefor, and that he is entitled to be repaid from defendant's share of the proceeds of the property. It would be contrary to this holding to subject his recovery from defendant to payment of fees.

Plaintiff also contends that no counsel fees can be allowed to defendant because all the services of her attorney were rendered in an adversary capacity, and none were for the common benefit. We cannot accept this view, but have concluded that the evidence does not sustain the finding that defense counsel rendered services for the common benefit equal in value to like services by plaintiff's attorneys.

The presence and litigation of controversial issues between the parties to a partition action does not, of itself, bar allowance of attorneys' fees for services rendered for the common benefit. Randell v. Randell, 4 Cal.2d 575, 582, 50 P.2d 806; Capuccio v. Caire, 207 Cal. 200, 207–209, 277 P. 475, 73 A.L.R. 8; Capuccio v. Caire, 215 Cal. 518, 528–529, 11 P.2d 1097. This, however, is not to say that all opposition to a partition proceeding is compensable from the property. Only those services which are for the common benefit warrant such recovery of counsel fees. Williams v. Miranda, 159 Cal.App.2d 143, 158, 323 P.2d 794. Yet the principal evidence of defendant's attorney was that his services were of the same value as those of plaintiff's counsel because ‘(a)t every hearing that Mr. Crawford has appeared on, I have appeared in opposition.’ To accept such evidence as alone establishing that defense counsel's services for the common benefit equal those of plaintiff's attorneys would be to hold that opposition, for its merest contribution to the adversary character of the proceeding, is compensable from the property partitioned. We do not so understand the rule.

There is, however, some evidence of contribution to the common benefit by defense counsel. For example, he discovered the existence of a deed which clouded the joint title, thus enabling a claim adverse to both parties to be disposed of. There may well be many other services for the common benefit. On the record before us, however, it does not appear that there is evidence sustaining the finding that all services of defense counsel were for the common benefit, rather than for ‘litigating purely controversial issues * * * in the effort to sustain * * * adverse claims.’ Capuccio v. Caire, supra, 207 Cal. at page 208, 277 P. at page 478. Accordingly, the case must be remanded for retrial of the issue of value of such services rendered for the common benefit.

Judgment reversed, with directions to the trial court to redetermine the value of services by defendant's counsel for the common benefit, and to allocate such charges to the interests of plaintiff and defendant in accordance with the views herein expressed.

DRAPER, Justice.

DOOLING J., and STONE, J. pro tem., concur.