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

Dorothy NEWHALL, Plaintiff and Respondent, v. George A. NEWHALL, Defendant and Appellant.

Civ. 19768.

Decided: January 31, 1962

Dinkelspiel & Dinkelspiel, Richard C. Dinkelspiel, San Francisco, for appellant. Walter C. Chouteau, Young, Rabinowitz & Chouteau, San Francisco, for respondent.

The same attorneys who represented Newhall during his lifetime and who have represented his executrix since her appointment on July 28, 1958, appeared on October 14, 1960, in opposition to the motion for the fixing of the amount of attorney fees, as directed by the decision of the appellate court in Newhall v. Newhall, supra, 157 Cal.App.2d 786, 321 P.2d 818 without making any objection by way of abatement or any suggestion of substitution of parties defendant. Any such objection was thereby waived. The right to an award of attorney fees had been adjudicated and became final prior to Newhall's death. This right survived his death. The amount of the award was fixed upon only the proceedings which occurred during his lifetime. When Newhall died the claim became one against his estate but the amount of such claim was not determined until the order fixing the same was made. Appellant has not contended that a creditor's claim against the decedent's estate was not filed within the time prescribed by law.

The petition for rehearing is denied.