IN RE: RICHARDS' ESTATE. Appeal of BENNALLACK. (1940)

An appeal from a decree settling accounts and ordering distribution in the matter of the estate of Philip Richards, deceased.

Philip Richards died in 1887, leaving a will in which Wm. G. Richards, Francis Richards and James Bennallack were named as executors. The will designated certain legatees and provided that in the event of the death of any one or more of them before receiving the respective bequests, the amount or amounts thereof should be paid to his brother Wm. S. Richards. The residue of the estate was left to said brother and to Francis Richards, also known as Francis S. Richards, another brother, share and share alike. Probate of the estate proceeded and in the year 1934 Wm. G. Richards, the sole surviving executor, rendered an account covering a period of twenty-two years and showing a balance of $8,533.98 cash on hand. This amount included $3,000 paid as additional consideration in connection with a piece of property accepted in exchange for a piece of property belonging to Philip's estate at the time of his death. Frank Bennallack, as administrator of the estate of Mary Ann Bennallack, deceased, wife and heir of James Bennallack, assignee of the Francis Richards interest in the estate of Philip Richards, filed objections to the account, alleging among other things that no vouchers had accompanied the report; that, according to the books, all money received had not been included in the account filed, and that many items of disbursement were not properly chargeable against the estate. A supplemental and final account was filed, indicating a balance on hand of $8,767.40, in addition to the real property received in the exchange above mentioned, and a hearing thereon set for December 7, 1934. Two days after the filing of this account on November 26, 1934, Wm. G. Richards died, and his wife, Mary E. Richards, his heir, to whom he had deeded all his interest in Philip's estate, including the interest of Wm. S. Richards, theretofore assigned to him, was appointed administratrix with the will annexed of Philip's estate. Exceptions to the supplemental and final account of Wm. G. Richards were filed by Frank Bennallack. Shortly thereafter, Mary E. Richards died and E.M. Rector, the husband of the daughter of Wm. G. and Mary E. Richards, and an heir at law of their estates, was appointed, on April 5, 1935, approximately four months after the death of Wm. G. Richards to succeed Mary as administrator of Philip's estate.

In February, 1936, the attorney for Rector, as administrator of the estates of Philip Richards, deceased, and of Wm. G. Richards, deceased, and the attorneys for Rector as the administrator of the estate of Mary E. Richards, deceased, entered into a written stipulation with the attorneys for Frank Bennallack, as the administrator of the estate of Mary Ann Bennallack, deceased, and also of the estate of James Bennallack, deceased, that the account and supplemental account of Wm. G. Richards, former executor of the estate of Philip be settled and allowed, pursuant to a proposed order which the stipulation authorized the court to sign. In connection with this stipulation and order, heard in chambers, the record does not disclose the filing of a “verified petition with the clerk” (Probate Code, § 578) or that the matter was set for hearing and notice given in the manner required by section 1200, Probate Code. The order, which was annexed to the stipulation, stated that actual cash on hand belonging to the estate was the sum of $3,002.76; that certain additional items of expense were settled and allowed, and that the order was to be “a final adjudication of the accounts presented and all moneys received and disbursed by the said Wm. G. Richards as executor of the said estate, and a final settlement of all cash money due said estate from said Wm. G. Richards, as executor of said estate”. By said order, Rector, as administrator of Philip's estate, was charged as of the date of the order with the amount of cash remaining on hand—$2,194.63. It should be noted in this connection that the amount of $3,002.76 is not arrived at by a deduction from the amount on hand of $8,767.40, of attorneys' fees, executor's fees, costs and an amount requested for extraordinary services of the executor, or by any combination of these amounts, but is in fact an amount arbitrarily arrived at by compromise. And respondent's claim that the court took into consideration these amounts is not borne out by the record. Thereafter, Rector as administrator of Philip's estate, filed his first and final account and petition for distribution. Frank Bennallack, individually and as administrator filed objections to settling the accounts of executor Wm. G. Richards and administrator Rector, to the petition for distribution and to the closing of Philip's estate. Subsequently supplemental accounts were filed by administrator Rector, followed by objections of appellant Bennallack, and several hearings were had in an endeavor to settle and adjust the final account and petition for distribution. On September 16, 1937, the final and supplemental accounts of administrator Rector were settled and allowed. Objections and protests filed by administrator Bennallack were denied, as was his petition that the above stipulation be declared null and void, and distribution of Philip's estate was ordered. Notice of appeal was filed September 27, 1937.

In support of appellant's contention that the order, settling Wm. G. Richards' accounts, and the proceedings leading up to its entry were irregular and that the accounts should be reopened, he sets forth that he had no knowledge of the above stipulation until after it had been made and filed; that he did not consent thereto and did not authorize or empower his attorneys, or either of them, or any other person, to enter into such stipulation or to compromise or settle his or any claim or demand; that the attorneys had been instructed and directed to the contrary; that at no time had Bennallack individually or as administrator of either the Mary Ann or the James Bennallack estates receive notice of the proposed compromise or settlement as required by law, nor in his capacity as administrator had he filed any petition showing such compromise to be to the best interests of the estates he represented.

Upon the death of Wm. G. Richards, his estate was indebted to the Philip Richards estate in the sum of $8,767.40, as shown by his supplemental and final account to which reference is above made. The procedure followed by the court in settling the claim of Philip's estate against the former executor thereof, Wm. G. Richards, deceased, after stipulation signed by the attorneys for the respective estates was a compromise, in effect the making and filing of an order settling the amount of cash on hand, $8,767.40, at the sum of $3,002.76, less attorney's fees, filing fees, etc., reducing the latter amount to the sum of $2,194.63.

If a debtor of an estate is unable to pay all of his debts, a petition setting forth that it is for the best interests of the estate that the amount be compromised may be filed by the executor or administrator of the creditor estate. Upon hearing, after posting of notice in accordance with the provisions of section 1200 of the Probate Code, the court may give the debtor a discharge. Probate Code, § 578. If the record discloses that notice was not given, the order is void for want of jurisdiction (Pearson v. Pearson, 46 Cal. 609) and may be attacked directly or collaterally at any time. Estate of Eikerenkotter, 126 Cal. 54, 58 P. 370; Texas Co. v. Bank of America, etc., Ass'n, 5 Cal.2d 35, 53 P.2d 127.

In this proceeding the order in effect recites that the attorneys representing the various interests stipulated to settle the claim. Ordinarily an attorney does not have the authority to compromise a claim, but if he should do so, and the compromise has been executed, it will be presumed that he held such authority. The presumption is disputable, however, and may be overcome by other evidence. In this matter a motion to set aside the order compromising the claim was denied. Upon hearing, both Bennallack and one of his former attorneys who signed the stipulation testified. According to the testimony, Bennallack denied giving authorization to compromise, and upon a visit to the attorney within three days after the order had been filed, terminated the attorneys' further representation in the matter. When authority of a legal representative to sign an agreement or stipulation relative to the disposition of a client's rights is challenged, evidence showing such authority must affirmatively appear. Jones v. Noble, 3 Cal.App.2d 316, 39 P.2d 486. The attorney in testifying relative to the matter, failed to deny the statement that he had not been authorized to sign the stipulation. Under the circumstances we conclude that any presumption in his favor ceases to exist, and in the absence of the attorney's testimony under oath we must conclude that no authorization was given. None of the cases cited by respondent (McLeran v. McNamara, 55 Cal. 508; Lamb v. Herndon, 97 Cal.App. 193, 275 P. 503; Bogardus v. O'Dea, 105 Cal.App. 189, 287 P. 149; Chase v. Van Camp Sea Food Co., Inc., 109 Cal.App. 38, 292 P. 179), in support of the contention that an attorney of record has the power to dismiss and that a stipulation to that effect does not depend for its sufficiency upon the special consent or authority given by the client, deals with a situation wherein the attorney, as in this case, received specific instructions not to compromise. As above noted, the stipulation is between estates, and the order attached thereto provides for the acceptance of a lesser amount of “cash money” than was due from the executor Wm. G. Richards. From a monetary standpoint, this worked to the advantage of the Wm. G. Richards estate and to the disadvantage of the Philip Richards estate, and the two Bennallack estates holding a one-half interest in the Philip Richards estate. The interests of the Bennallack heirs were compromised without approval of the court or the administrator of the Bennallack estates and settled without the filing of a petition showing the advantage of the “settlement” or “compromise” and without notice to any of the interested parties, as required. The release was not complete; it was only partial.

Presumably section 578, Probate Code, supra, was intended to apply between an estate and third persons, but in this instance upon the death of Wm. G. Richards he, of course, ceased to be the executor of the Philip Richards estate. Upon the appointment of E.M. Rector as administrator, the Philip Richards estate was of necessity forced to deal with the Wm. G. Richards estate as a third party. This is evidenced by the order itself which in 1936 purported to settle the final account of Wm. G. Richards as executor by charging the new administrator, following the signing of the above stipulation by the attorney for the administrator of the Wm. G. Richards estate, with the less sum of “cash money due” as of 1934, the year wherein Wm. G. Richards died, in accordance with the stipulation. The stipulation and the order purported to be an acquittance to the Wm. G. Richards estate, which, if any liability existed at the time, would have been liable for the full amount as shown by the sworn statement of Wm. G. Richards. Respondent suggests that the compromise, if any, is between the debtor estate of Wm. G. Richards and the heirs of Philip Richards, that is, not between the debtor and the estate. However, the stipulation was signed by E.M. Rector in his capacity as administrator of the estate of Philip Richards. The attorneys, representing appellant, lacked authority to sign the stipulation, and the court, not having complied with sections 578 and 1200 of the Probate Code, did not have jurisdiction to make the order compromising the account and supplemental account of Wm. G. Richards. Respondent contends that no compromise is involved in the case; that neither the stipulation nor the order amounted to a compromise. The order directing the acceptance of the lesser amount does not appear from a mere reading thereof to be void upon its face. It does not use the word “compromise”, but refers to the stipulation as a settlement, which in this instance, however, was in fact a compromise. The record affirmatively shows that the court was without jurisdiction to make the order. Texas Co. v. Bank of America, etc., Ass'n, supra.

The records show that the former executor was charged with over $8,000 and that the estate accepted in lieu thereof, after deduction of attorney's fees and costs, a sum less than $3,000. There was no word of explanation concerning the reduction. If any part of the executor's request for compensation for extraordinary services was considered in arriving at the reduced figure, it would have been an easy matter to have so recited as was done in connection with the attorney's fee. The order “that all money belonging to said estate on November 22, 1934, was the sum of $3,002.76” was in effect a declaration that the sum set forth in the final account was not in fact the true sum. Respondent contends that the stipulation was in fact a waiver of objections. It was more than a waiver of the objections theretofore filed, in effect, that money received by the executor had not been included in the account and that many items of disbursement by the executor were illegal and should not have been charged against the estate, etc. The stipulation was an agreement to accept a less amount than appeared in the account sworn to by the executor; there was no explanation in open court or otherwise in any official way to appellant. Assuming that the attorney had authority to waive his client's interest in amounts not included in the account, and disbursements not properly chargeable against the estate—matters in connection with which objections were filed as above noted—it cannot be presumed that he had a right to stipulate for his client's proportion of a less sum than “cash on hand” as appeared in executor Richards' account. A compromise of interest in a decedent's estate may be authorized only by the court. Probate Code, § 578, supra.

It is respondent's view that a failure to comply with section 578 is of no consequence after settlement of the final account, as the section does not require a party to resort to a compromise to the exclusion of his legal remedy. The cases cited by respondent construe the law as it existed in 1931 prior to the amendments in 1933 (Stats.1933, chap. 969, p. 2493) and in 1935 (Stats.1935, chap. 724, p. 1971). Prior to 1931 a petition or notice was not required. In 1933 and 1935 a verified petition to compromise was required; likewise a notice of a hearing thereof given for the period and in the manner required by section 1200. In Mazza v. Austin, 25 Cal.App.2d 85, 87, 76 P.2d 533, 534, the court said: “The power of the court to authorize a compromise is derived solely from section 578 of the Probate Code.” The order should have been set aside and procedure adopted in accordance with the code provisions.

Respondent contends that the appeal in so far as it applies to the settlement of the accounts was filed too late. If it be contended that appellant should have appealed from the order settling the Wm. G. Richards' accounts, only the stipulation and the order would have been part of the record on appeal. An appeal from the order of February 7th would have held up further proceedings in the estate and would have been of no avail as nothing would have affirmatively appeared in the record to indicate that appellant's attorney did not have authority to sign the stipulation. An independent action to vacate and set aside the order would likewise have further delayed proceedings until the decision thereon and possible appeal. Appellant adopted the most practical method of protecting the rights of the estates which he represented, namely, by promptly presenting a motion to vacate and set aside the order. When the authority of an attorney is challenged, the initiatory proceedings must be instituted in the trial court. Ventura County v. Clay, 119 Cal. 213, 51 P. 189; People v. Honey Lake Valley Irr. Dist., 77 Cal.App. 367, 246 P. 819; Wright v. Dorman, 155 Tenn. 189, 291 S.W. 1064.

Respondent's main contention is that the time for perfecting the appeal began to run from the entry of a minute order, made subsequent to a hearing upon appellant's objections to the settlement of the final account of administrator Rector and to the distribution of the estate. The facts are as follows: On February 7, 1936, the court signed an order settling the accounts of executor Wm. G. Richards as agreed in the stipulation. On February 14, 1936, Rector filed his first and final account and petition for distribution. On February 29 of the same year Bennallack filed his objections to settling the accounts, to closing the estate and to the petition for distribution. On January 4, 1937, after hearing, the court stated: “The application for relief under section 473 will be denied.” Some time between January 4th and the end of that month, a minute order appeared on the records of the court, reading in part as follows: “It is ordered that relief under section 473 be denied. It is further ordered that judgment be that residue of the estate will be divided equally between the heirs and successors of William S. Richards and Francis Richards.” However, a formal order appears in the settlement of accounts and decree of distribution dated September 16, 1937, and filed September 20, 1937. The notice of appeal was dated September 27, 1937. In Estate of Olsen, 9 Cal.App.2d 374, 382, 50 P.2d 70, 74, the court said: “In our opinion the appeal from the minute order should be dismissed as said order was merely a preliminary order for a decree of distribution rather than a decree of distribution. ‘An order for judgment is not a judgment.’ United Taxpayers' Co. v. San Francisco, 55 Cal.App. 239, 243, 203 P. 120, 121. While a decree of distribution need only be ‘entered at length in the minute-book of the court’ and need not be a separate instrument signed by the judge and filed (Probate Code, § 1221), the question still remains as to whether a particular entry in the minute book constitutes an order for a decree of distribution or the decree itself. It is a matter of common knowledge that a preliminary order for a decree of distribution is customarily entered in the minute book and that thereafter a separate instrument is customarily signed by the judge, filed, and copied at length into the minute book.” In the instant case, the minute order that “The application for relief under section 473 will be denied” was not responsive to the relief prayed by appellant. The petition was not one filed under the provisions of section 473 of the Code of Civil Procedure, but was a petition to declare null and void and of no force and effect the stipulation referred to, and to set aside the accounts of executor Wm. G. Richards. The minute order, entered upon some indefinite date between the fourth and thirtieth of January, did not give appellant the date from which the time of appeal commenced to run, and did not correctly rule on the petition presented. We believe that in a case wherein a jurisdictional question is raised and the minute order does not recite the decree or order “at length” (Probate Code, § 1221), the time for appeal does not start until the order is signed by the judge and filed. At the time of final distribution, appellant availed himself of the provisions of article III, chapter XVI, division III of the Probate Code by resisting the application to distribute. Probate Code, § 1020. Until the taking of this appeal, each side herein treated the court's statement as requiring an order to be made in the future—appellant by not appealing within sixty days of its date, and respondent by submitting in the order of September, 1937, a full and complete provision finally disposing of the motion to set aside the order of February, 1936, settling the accounts of executor Richards. Estate of Siemers, 202 Cal. 424, 261 P. 298.

Appellant's second contention on appeal is that the exchange of a certain parcel of land belonging to the estate for land of the Corporation of America, plus cash, was void. On October 24, 1933, Wm. G. Richards as executor of Philip's estate filed a petition for authority to make the exchange. Subsequently Frank Bennallack and others filed a protest against such exchange upon the ground that the estate had not been distributed. The petition was granted upon the ground that the exchange was for the best interests of the estate. An order authorizing the exchange was signed and filed on November 6, 1933, which stated that notice of hearing had been duly given and that evidence oral and documentary had been introduced. No appeal from such order was filed until September 27, 1937.

This independent proceeding initiated by petition and terminated by order was an adjudication of the exchange of property, subject to appeal within sixty days as in the case of an order directing the conveyance of property. Probate Code, § 1240. It was subject to an attack collaterally if the order was void on its face or if the probate court did not have jurisdiction to entertain the petition or had failed to follow the statutory provisions conferring jurisdiction. Texas Co. v. Bank of America, etc., Ass'n, supra. The contention is that the court did not have jurisdiction to determine the petition. Respondent contends that the authority to hear and determine the petition is found in section 860 of the Probate Code, enacted in 1931, based upon section 1576a of the Code of Civil Procedure enacted in 1929. The probate section was amended in 1935 (Stats.1935, p. 1972) and in 1939 (Stats.1939, chap. 349, p. 1684). The petition for the exchange was tantamount to a complaint in an ordinary action. The notice required by statute to parties alleged to be interested was complied with. As legatees and devisees in the Philip Richards estate, certain parties appeared in response to the notice and protested the granting of the petition, but offered no evidence against the allegation of the petition that it was to the best interests of the estate that the exchange be made. The petition might well be denominated a petition for the sale of property. Cash plus other property was the consideration for the sale. The court had jurisdiction to entertain the petition as presented. If it erred in its determination of the matter the remedy was by direct appeal. At least it should be and is impregnable, after approximately four years, against a collateral attack in the estate of Philip Richards, deceased, irrespective of any adjudication in any pending quiet title action, when it appears that appellant had knowledge that the exchange of property had been effectuated by the execution, delivery and recordation of the deeds. Estate of Pierce, 28 Cal.App.2d 8, 81 P.2d 1037.

The appeal from that portion of the decree settling accounts and the decree of distribution relating to the exchange of property having been taken too late, is dismissed; in all other respects the decree appealed from is reversed, with directions to proceed in accordance with the views expressed herein.

I concur in that portion of the major opinion holding that the order authorizing the exchange of property is not subject to review; but I dissent from that portion holding that in all other respects the decree appealed from should be reversed with directions to proceed in accordance with the views therein expressed.

The appeal was taken, as stated, from the decree settling the final accounts and granting the petition for final distribution filed by E.M. Rector, as administrator with the will annexed. However, no complaint is made about the settlement of those accounts, nor as to the manner in which the decree ordered the estate distributed. The controversy centers upon a ruling made by the probate court denying a petition presented by appellant at the time of the hearing of the Rector final accounts wherein appellant, among other things, attacked the validity of and asked the probate court to declare void two orders previously made by a different judge, involving the administration of the estate by Wm. G. Richards as sole executor of the will, whose death occurred on November 28, 1934. The adverse ruling on said petition was made on January 4, 1937, at the conclusion of said hearing of the Rector accounts, but was later incorporated in the decree of final settlement entered on September 20, 1937; and the present appeal was taken from that decree.

The first of the orders appellant sought to have annulled was the one made on November 6, 1933, authorizing the exchange of real property; the second was made on February 7, 1936, and settled two accounts filed by the said Wm. G. Richards. Section 1240 of the Probate Code afforded appellant a right of appeal from each of the orders so attacked, which right he failed to exercise; therefore, upon the expiration of the time within which those appeals could have been taken, each order became final; and it was principally upon that ground that the probate court held that it was without authority to set either of said orders aside. As will be noted, in disposing of the appeal the majority opinion holds that the probate court's adverse ruling on said petition was correct as to the order of November 6, 1933, authorizing the exchange of real property, but erroneous as to the order of February 7, 1936, settling said accounts; and it is with regard to the question of the validity of the latter order that the present difference of opinion has arisen.

At the time the order of February 7, 1936, was made, the Philip Richards estate had been in the process of administration in Nevada county for nearly fifty years; and continuously for forty-seven years of that period Wm. G. Richards served as executor. When the decedent's will was admitted to probate in 1887 three coexecutors were appointed; but two of them died prior to 1901, and from thence on, up to the time of his death in 1934, the estate was under the management of Wm. G. Richards as sole executor. The first of the two accounts settled by the order in question was filed on June 16, 1934. Appellant through his attorney filed objections thereto, mainly upon the ground that the account was not supported by vouchers. The matter was heard and ordered submitted in open court prior to the executor's death, the order of submission being made on September 24, 1934. The second account was his final account. It was accompanied by a petition for final distribution, and was filed on November 26, 1934, two days preceding the executor's death. The two accounts covered a period of twenty-two years, and contained several hundred items of receipt and disbursement, which showed the dates, amounts, and the nature thereof. The items of receipt consisted mostly of monthly rentals collected from the tenants of the real property; and nearly all of the items of disbursement represented payments for taxes, insurance, and the improvement and upkeep of the property. A portion of the remainder represented the expenses of litigation in which the estate on many occasions had been engaged. The recapitulation set forth in the final account showed that during the twenty-two preceding years said executor received the total sum of $18,447.42, and expended $9,680.02, which left a balance on hand of $8,767.40; but as against that balance the executor made a demand, supported by a full statement of facts, for an allowance of fees in the following sums: statutory fees of the executor, $788.95; for extraordinary services performed by him during the forty-seven preceding years, $4,700. Appellant filed objections to the final account and to the petition for final distribution, one of the objections being directed against the allowance of the amount of fees demanded.

After the administrator with the will annexed was appointed, several hearings were had on the last account filed by the executor, and finally, on February 5, 1936, the matter of the settlement thereof was taken up in court chambers. The attorneys representing all parties interested in the distribution of the estate were present, and an agreement was reached in which the court joined, as to the manner in which both accounts should be settled. The agreement was reduced to the form of a written stipulation which was signed by all of said attorneys, including appellant's attorney; and the form of an order of settlement was attached to the stipulation, which the court was requested to sign and enter; and on February 7, 1936, the order was signed and entered accordingly. It appears from the record that in reaching a settlement as to the amount of money ultimately due the estate from the executor, the matter of the executor's demand for compensation was taken into consideration and that it was understood that said fees would be waived. This is shown by the testimony given later by attorneys Armstrong and Wright at the final settlement of the estate; and in accordance with the stipulation the court found that the amount so due was $3,002.76, out of which the court directed should be paid $750 attorney's fees and $52.10 clerk's fees. Also in conformity with the terms of the stipulation the order concluded as follows: “* this order shall be a final adjudication of the accounts presented and all moneys received and disbursed by the said Wm. G. Richards as executor of the said estate, and a final settlement of all cash money due said estate from said Wm. G. Richards, as Executor of said Estate.”

Shortly after the order of settlement was filed, however, appellant substituted his present counsel, and on February 29, 1936, the petition for nullification was filed. Besides asking for an annulment of the order of settlement, the relief sought by appellant was in part as follows: That a complete hearing be had on both accounts of said Wm. G. Richards; that thereupon he be charged with the payment of large sums of money, aggregating approximately $18,447.42, plus interest amounting to about $4,000; and “That no allowance be made to said Wm. G. Richards for any item of expenditure alleged to have been made in said accounts in excess of $20.00 for which no voucher is produced or filed” or “for any item of expenditure alleged to have been made in said accounts for any item of $20.00 or less for which no voucher is produced, unless such item of expenditure shall be supported by the uncontradicted oath of the said Wm. G. Richards, positive to the fact of payment, specifying when, where, and to whom it was made; provided, however, that there shall not in any event be any allowance made for items of expenditure of $20.00 or less, where no vouchers are produced, for any sum in excess of $500.00.” As to the absence of vouchers, it may be stated that at the hearing of the first account testimony was adduced showing that during the entire management of the estate the executor kept a “time” book in which he entered all receipts and disbursements as the transactions took place, and that the items of receipt and disbursement set forth in said account were copied from that book, which was produced at the hearing and introduced in evidence; furthermore, that the executor testified in support of his account that the amounts of all payments set forth therein had been actually made by him on the dates, to the persons, and for the purposes stated in the account; and so far as the record shows no contradictory testimony was produced.

At no time has appellant claimed that the order settling said accounts was made or entered as the result of mistake, inadvertence, surprise or excusable neglect. Code Civ.Proc. § 473. To the contrary, he expressly disclaims in his briefs that his petition for the nullification thereof was based on any such theory. Nor anywhere does he intimate that any fraud was practiced by anyone in connection with the making of said stipulation or the obtaining of said order. Moreover, he expressly concedes that the order upon its face is valid, and the majority opinion so holds. But going behind the order, appellant contends that it is void for these reasons: (1) That the final proceedings which resulted in the making of the order of settlement took place in court chambers; (2) that the items of expenditure set forth in said account exceeding $20.00 in amount were not supported by vouchers; (3) that said order is based on a void stipulation in that the stipulation was in effect a “compromise” of a claim against “a debtor of the decedent” as those terms are used in section 578 of the Probate Code, and that no petition was filed or court order obtained therefor as required by that section; and (4) that in any event appellant was not bound by said stipulation and that the same was ineffectual for any purpose, because appellant's attorney entered into the same without being authorized by appellant so to do.

The grounds upon which the majority opinion holds that the order of settlement is void are those urged for reversal by appellant in his first, third and fourth points. The effect of the reversal with said directions will be, therefore, not only to nullify the order of February 7, 1936, and thus again open up for future examination the accounts of the executor extending over a period of over twenty-two years, but to declare as a matter of law that a probate court is without jurisdiction to settle an account of an executor or administrator for less than the amount of the balance set forth in the account unless a court order for “compromise” is first petitioned for and granted pursuant to the proceedings prescribed by section 578 of the Probate Code. It is my judgment that for the following reasons the requirements of section 578 were never intended to apply to proceedings involving the settlement of such accounts: First, because a complete procedural setup for the settlement of the accounts of an executor or administrator is provided by article III, chapter XV, division III of the Probate Code, and no reference whatever is made therein to the provisions of section 578. It may be safely assumed, therefore, that the legislature intended that the procedure prescribed by said article III should be all-controlling. Secondly, no case has been cited by appellant indicating that a compliance with said section is a prerequisite to the settlement of such accounts, nor has any case been called to our attention where, in the settlement of such accounts, the procedure prescribed by that section has been followed. Third, there is nothing in section 578 itself from which it may be reasonably inferred that the requirements thereof must be followed in the settlement of such accounts. Quite to the contrary it would appear from the terms thereof to be impracticable to comply therewith prior to such settlement. In this regard the section in part reads: “If a debtor of the decedent is unable to pay all his debts, the executor or administrator, with the approval of the court, may give him a discharge, upon such terms as may appear to the court to be for the best interest of the estate. A compromise may also be authorized by the court when it appears to be just and for the best interest of the estate.” Obviously, not until after the probate court has made and entered its order settling an account is there any determination of the amount due the estate from the executor or administrator, and clearly, therefore, not until the amount thereof has been so determined could there be any basis for a petition or an order for compromise. Fourth, if it be held that the requirements of section 578 apply to the settlement of such accounts, it would evidently preclude an attorney in a large measure from legally stipulating in court as to particular items if thereby the amount of the balance shown by the account to be due to the estate from the executor at the time the account was filed was reduced.

Entirely aside, however, from the question of the application of said section 578, the law is well established that where grounds upon which a party seeks to have an order vacated existed at the time the order was entered, and which would have been available upon an appeal therefrom, an appeal will not lie from a subsequent order refusing to set aside the original order; that is to say, a party aggrieved by an order must take his appeal from the adverse order itself, if an appeal lies therefrom; and that if he fails so to do, an appeal is unavailing from a subsequent order refusing to set aside the original order; and the foregoing rule applies to orders made in probate. (2 Cal.Jur., p. 164.) Here it is apparent that the irregularities upon which appellant bases his first three points could have been properly incorporated in a bill of exceptions and presented for review on an appeal from the order of February 7, 1936; and on oral argument counsel for appellant in effect so conceded. Such being the case, and no appeal having been taken from said order, it would seem clear that under the legal rules above stated appellant is now precluded from attacking the validity of said order on the same alleged irregularities on an appeal from a ruling refusing to set aside the original order.

With respect to appellant's fourth point, it is true, as he contends, that the facts relied upon by him to prove that his attorney entered into said stipulation without being authorized by him so to do could not have been embodied in a bill of exceptions on an appeal from the order of February 7, 1936, because that issue did not arise and the evidence pertaining thereto was not adduced until after said order had been made and entered; but I disagree with appellant's further contention that the validity of said final order of settlement can be made to depend on the question of the binding effect upon appellant of the stipulation, for the reason that by virtue of the code sections embodied in said article III the authority to settle the accounts of an executor or administrator is vested in the probate court, free from any control by the parties; and while the court may and often does exercise such authority in accordance with the stipulations or agreements of the parties or their attorneys, it is not bound to do so. Therefore, assuming that the stipulation entered into by said attorneys in the present case was for any reason not binding on appellant, the court's order of settlement, being valid on its face, could not in any event be rendered void thereby.

As heretofore mentioned, the record shows that in arriving at a settlement of the accounts, the court and the attorneys took into consideration the executor's demand for fees. Among the facts upon which the demand was based, as they are shown by the record and particularly by the executor's petition for final distribution, are these: At the time of the executor's appointment in 1887, the estate consisted of several pieces of real property and considerable personal property, including mining stock. The dispositive clauses of the will provided for approximately twenty-two cash legacies, some seven bequests of personal property, five specific devises of real property, and the residue was bequeathed in equal shares to the decedent's brothers. Several of the legatees resided in England. The terms of the will authorized the executors to pay the cash legacies, deliver the bequeathed personal property, and convey the real property to the beneficiaries entitled thereto, without order of court; also to rent, sell or otherwise dispose of the remaining property belonging to the estate. Subsequent to the death of his two co-executors, the said Wm. G. Richards had the entire management of the estate. His services in this regard consisted largely of securing tenants for the property, collecting the monthly rentals therefrom, and keeping it in repair and improving the same. During the forty-seven years he served as executor the estate was engaged as a party litigant in upwards of eight lawsuits; and according to the statement made by appellant's present counsel at the opening of the hearing on January 4, 1937, said estate had been a party to some eight appeals to the Supreme Court. At the time the executor filed his petition for final distribution he had paid all claims against the estate, and carried out all of the terms of the will with respect to the payment of the cash legacies, delivery of the bequests, and the conveyance of the real property, and besides he had sold or exchanged various other pieces of the property belonging to the estate, so that the residue of the estate consisted only of money and one parcel of real property, which by the final decree of distribution from which the appeal was taken was distributed in equal shares to the estates of Mary Elizabeth Richards, the deceased wife of said executor, and the estate of James Bennallack, deceased, the father of appellant. Up to the time of the filing of his final account no allowance had been made to him for fees, so that for the extraordinary services thus rendered by him during the preceding forty-seven years he asked for an allowance of approximately $100 a year. It would seem, therefore, that even though the question of the reasonableness of the demand was a matter that could be properly reviewed on this appeal, the facts above set forth would not warrant this court in holding as a matter of law that the amount demanded was entirely disproportionate to the value of the services rendered.

As pointed out in the majority opinion it appears that when the executor filed his final account he did not in fact have on hand the amount of money with which he had therein charged himself; and that such fact was known to the attorneys when they entered into the stipulation. Nevertheless, in determining the amount that was ultimately due the estate from the executor, the probate court doubtless had the legal authority to take into consideration and make reasonable allowance for fees demanded by the executor, and to settle the account accordingly.

For the reasons stated it is my conclusion that no legal grounds have been shown for the nullification of the order of February 7, 1936, and that therefore the decree appealed from, as rendered, should be affirmed.

WARD, Justice.

I concur: PETERS, P.J.