BANK OF CALIFORNIA v. GEORGE (1988)

The Bank of California, N.A., executor of the estate of James P. George, is appealing from an order granting attorney fees as part of a family allowance.   Appellant contends that the trial court failed to follow precedent, which disallows such a grant.   We agree and reverse that portion of the order granting attorney fees.

I. FACTS

On July 29, 1986, the court admitted to probate the last will and testament of James P. George and appointed West America Bank N.A. (now called the Bank of California, N.A.) as executor.   Mr. George devised a life estate in the family residence to his widow, Blanchette George, with the remainder to his issue.   After making gifts to ten individuals, Mr. George placed the residue of his estate in two trusts for the benefit of Blanchette George during her life with his issue as remaindermen of both trusts.

At death, Mr. George's estate had assets valued at $1,500,000.   The main income-producing property consisted of certificates of deposit and bearer bonds, yielding an estimated annual income between $42,000 to $50,000.

Shortly after Mr. George's death, a dispute developed regarding ownership of the accumulated assets.   Mrs. George agreed to live on income from the estate until ownership was decided.

On December 3, 1986, Mrs. George filed a petition for family allowance pursuant to Probate Code section 6540.   She included in this petition a request for attorney fees.

The court then awarded Mrs. George $15,000 for attorney fees previously incurred and for future reasonable attorney fees to allow her to proceed with her request for a continuing family allowance.

II. DISCUSSION

First, the probate order at issue is reviewable on appeal.  Probate Code section 1240 specifically allows an appeal from an order “[d]irecting or allowing the payment of [an] ․ attorney's fee.”  (Prob.Code, § 1240, subd. (m), as operative before July 1, 1987;  see Estate of Effron (1981) 117 Cal.App.3d 915, 921, fn. 3, 173 Cal.Rptr. 93.)

Second, appellant argues that the grant of attorney fees as a part of a family allowance is contrary to the holding in Estate of Van Der Oef (1963) 212 Cal.App.2d 155, 158, 27 Cal.Rptr. 855.   We agree.   The court expressly holds that the right to a family allowance, provided for by statute, does not include attorney fees.  (Ibid.)

An exception exists when the petition for family allowance is on behalf of a minor child, which obviously does not apply here.  (Estate of Filtzer (1949) 33 Cal.2d 776, 783, 205 P.2d 377;  Estate of Barkdull (1969) 275 Cal.App.2d 729, 731, 80 Cal.Rptr. 317.)

Respondent argues that the reasoning in Filtzer should be extended to cover awards of attorney fees on the widow's own petition for family allowance.   However, even if such an interpretation of Filtzer might be appropriate, the facts of this case do not justify such an extension.   Therefore we reverse that portion of the order granting attorney fees, and remand this matter to the trial court for further action consistent with this opinion.

I respectfully dissent.

The governing statutory law in this proceeding is Probate Code section 6540 ¹ which provides for the awarding of a family allowance to (among others) the surviving spouse and/or the minor children of the decedent.   The statutory measure is “such reasonable family allowance out of the estate as the court in its discretion determines is necessary for their maintenance according to their circumstances during administration of the estate.”  (Ibid.)

In construing the nearly identical statute in 1949 the California Supreme Court held that no error occurred in awarding attorney's fees as part of an order granting a family allowance to a minor child of the decedent.  (Estate of Filtzer (1949) 33 Cal.2d 776, 781–784, 205 P.2d 377.)   The court's first hurdle was the argument that attorney's fees are not recoverable unless they are specifically provided for by statute.   A unanimous court found that rule to have “no relevancy” because the probate court had not purported to award attorney's fees as such but instead as part of the amount of money which—within the meaning of the then family allowance statute (former § 680 [repealed by Stats. 1983, ch. 842, § 39, p. 3044];  see now § 6540 [added by Stats. 1983, ch. 842, § 55, p. 3088] )—was “necessary” for support and maintenance of the minor.  (At p. 781, 205 P.2d 377.)   Thus, the court explained that the probate court had rested its order “on the same principle as one made ‘for the payment of doctor and hospital bills' incurred on his behalf—‘necessary’ for his support and maintenance.”  (Ibid.)

Then the dispositive question was taken up by the high court:  did the statute under which the trial court acted give the probate court the power to award attorney's fees as part of the award for “maintenance” of the minor.   The issue was purely a question of statutory construction:  the meaning of the word “maintenance” within the family allowance statute.   Noting that it was well established that in a suit on behalf of a minor against a living parent for maintenance, attorney's fees would be recoverable the court held that “the same reasoning should apply” in determining what the Legislature meant by “maintenance” in the family allowance statute.  (Estate of Filtzer, supra, 33 Cal.2d at pp. 782–783, 205 P.2d 377.)

In the case at hand the modernized language of the statute is “as is necessary for their maintenance.”  (§ 6540.)   Thus, we must construe essentially the same statute that was definitively construed in Estate of Filtzer to authorize a family allowance to include an award of attorney's fees incurred in prosecuting the support claim.   Does it make any difference that here the family allowance is for a widow whereas in Filtzer it was for a minor child?  Section 6540 on its face answers that question by making the standard—“as is necessary for their maintenance”—the same for both minor children and a surviving spouse.   To sum it all up, we are confronted with essentially the same statute involved and interpreted in Estate of Filtzer and neither the statute's language nor the rationale of the high court differs one wit as between family allowances for a surviving spouse and a surviving minor child.   The same result would seem to follow here and to be mandated by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.   All the probate practice handbooks and form books so advise.  (See, e.g., California Decedent Estate Practice (Cont.Ed.Bar 1987), vol. 2, § 16.9, p. 16–11;  California Decedent Estate Administration (Cont.Ed.Bar 1971), vol. II, § 18.43, p. 743 [“Attorneys' fees incurred in obtaining a family allowance, although not always allowed as such, may be taken into account as an expense which the family allowance must cover for those persons obtaining the allowance out of the estate funds,” citing Filtzer ];  California Probate Workflow Manual Revised (Cont.Ed.Bar 1984), vol. 2, § 14.3, p. 399 [provides for attorney's fees within the suggested forms for the award of family allowances].)

However, there is one case squarely to the contrary.  Estate of Van Der Oef (1963) 212 Cal.App.2d 155, 27 Cal.Rptr. 855.   There the Court of Appeal reversed an order denying a widow a family allowance but in so doing instructed the trial court on remand to deny her an allowance for attorney's fees.   The court placed its ruling solely upon its reading of Filtzer which it understood to mean that “since attorney's fees would have been allowable in a suit by the mother to establish legitimacy of the child during the lifetime of the father pursuant to section 196a of the Civil Code, there should be an equal right to attorney's fees for representing the interests of the child by means of an application for a family allowance under section 680 [now 6540] of the Probate Code.”  (At pp. 158–159, 27 Cal.Rptr. 855.)

What the Court of Appeal missed was that the Supreme Court in Filtzer was not making the power to award attorney's fees dependent upon some right—statutory or otherwise—existing outside of the family allowance statute and limited to legitimizing proceedings brought by minor children.   Quite to the contrary, the Supreme Court in Filtzer was only construing the word “maintenance” within the family allowance statute as being as broad as—but not dependent upon—a minor child's statutory right to sue a living parent for support.   In driving that home the Supreme Court told us that “the same reasoning should apply” in suits against a live parent for maintenance and in suits against a dead parent's estate for maintenance.  (Estate of Filtzer, supra, 33 Cal.2d at pp. 782–783, 205 P.2d 377.)   The “same reasoning” was for the sole purpose of determining what the Legislature had meant in using the words “necessary for maintenance” in the statute providing for the latter suit—i.e., a petition for family allowance.  (Ibid.)

For these reasons I would affirm the order awarding attorney's fees as part of the order for family allowance to the widow.

FOOTNOTES

1.   All statutory references are to the Probate Code.

CHANNELL, Associate Justice.

ANDERSON, P.J., concurs.