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


Civ. 13010.

Decided: February 21, 1946

John B. Ehlen, of San Francisco, for appellants. Elkins & Wright, of San Francisco, for respondent Cox. Henry F. Boyen and A. E. Levinson, both of San Francisco, for Public Administrator Phil C. Katz.

This is an appeal by the heirs from an order of final distribution and from a denial of their motion to reopen proceedings under section 1020.1 of the Probate Code. The order denying the motion to reopen the proceedings is not an appealable order under section 1240 of the Probate Code and the appeal therefrom must be dismissed. The decree of final distribution disposed of all the matters contemplated by section 1020.1 of the Code. The determination of the rightful heirs was made in accordance with the agreements of all the parties and the only debatable issue raised by the appeal is whether the probate court should have rejected the interest of the first assignees in whole or in part.

The decedent died intestate in San Francisco on March 16, 1942, leaving an estate of $8000. On March 20, 1942, the Public Administrator petitioned for letters of administration. On March 31, 1942, certain of appellants, brother and sister of decedent residing in Ireland, executed powers of attorney and assignments of one-third of their interests in the estate to respondent who conducts a business of probate and heir research in Chicago. On April 21, 1942, the other appellants executed the same powers of attorney and somewhat similar assignments to respondent. In May all of the appellants executed powers of attorney to Mathew Murphy, Irish Consul in San Francisco, and specifically revoked the powers given to respondent. However, the respondent filed a notice of appearance in the estate on behalf of appellants and employed counsel to represent him under his powers of attorney and assignments. In March, 1944, the final account showing the estate ready for distribution was filed, and in December, 1944, the probate court determined that appellants (and two minors who are not involved here) were the sole heirs and entitled to distribution. In January, 1945, appellants filed a motion under section 1020.1 of the Probate Code to distribute their entire interest to them in disregard of the assignments to respondent, and a supplementary motion asking the court to inquire into the reasonableness of the consideration for the assignments. The motions were denied. Appellants subsequently filed a motion to reopn the proceedings on the ground that the Public Administrator knew the names and addresses of decedent's brother and sister and hence appellants were not ‘lost or missing heirs.’ This motion was also denied and the decree of final distribution was made distributing one-third of appellants' shares in the estate to respondent.

Notation should be made that in the assignments to Walter C. Cox, executed March 31, 1942, by Alice Galvin Butler, Agnes Locke, and Theresa and Michael Butler the following language was deleted by drawing a pen and ink line through the words, ‘and receive repayment of any and all sums paid as expenses herein from such sum as may be awarded us or any of us of and from said estate, insurance or other assets; and further that for and in consideration of and.’ No initials are attached and no evidence was offered to show when the apparent deletion was made. The assignment of the other heirs to Cox executed April 21, 1942, are on a similar printed form without any deletion.

The controversy in the probate court and on this appeal is in fact a contest between the two groups of assignees over their share of the interests ordered distributed to the several heirs. Respondent Cox operates from his principal offices in the city of Chicago; Matthew Murphy operates from San Francisco where he holds the position of Consul of Eire. Both conduct their business in the same manner—by contacting the ‘lost or missing’ heirs, securing their authorization to appear for them, and employing their own counsel to represent them either under powers of attorney or assignments. In this case respondent moved first and secured both powers of attorney and assignments from the lost heirs within two weeks of the death of decedent. Murphy and his counsel thereafter persuaded the heirs to revoke their contracts with respondent and to execute powers of attorney to Murphy. Under this power of attorney he engaged legal counsel to present himself and these heirs. The real controversy therefore is over the respective rights of these parties to compensation for finding the ‘lost or missing’ heirs.

The first point raised is that the respondent's powers of attorney and assignments constitute undertakings by a nonlawyer to practice law. The validity of an assignment or power of attorney to aid an heir in the recovery of his interest in an estate under probate is recognized in section 1020.1 of the Probate Code. By the assignment the assignee becomes a party in interest with the same right to employ counsel as any other party. No California case is found which rejects the inference in section 1020.1 that the practice is recognized as legal. In re Estate of Cohen, 66 Cal.App.2d 450, 152 P.2d 485, and In re Estate of Lund, 65 Cal.App.2d 151, 150 P.2d 211, both assume that the section is valid and appellants have not attacked its validity. The basis of their attack is that the practice is contrary to public morals, but this cannot be so if the legislature sanctions it. In view of the Code section, and the established practice under it, citations from other jurisdictions need not be reviewed.

Appellants' second point is that respondent's powers of attorney and assignments are the result of an illegal solicitation of legal business. The argument might have had some weight before the practice was recognized by the code section cited and by Estate of Cohen, supra, but, since the legislature has recognized the practice as legal it is not the province of the courts to condemn it.

Finally it is argued that the trial court erred in refusing to reduce the proportion of the estate to be distributed to respondent. The argument is based upon the fact that appellants were found readily through information in the possession of a local bank where the decedent had funds on deposit, and that respondent located some of the heirs within two weeks after the death of decedent. No evidence was offered as to what, if any, work was done by respondent prior to the location of the heirs, and no evidence was offered as to the reasonable value of his services. On this appeal the argument is simply that the allowance to respondent was unreasonable and this is based on statements of counsel, not upon competent evidence. It is manifest that section 1020.1 of the Probate Code was designed to commit to the discretion of the judge in probate the determination of the assignee's interest, but such determination will not be disturbed on appeal unless an abuse of that discretion is shown. Unless the reviewing court is prepared to fix a stationary fee for such services, as the legislature has done in respect to executor's and attorney's fees (secs. 901 and 910, Probate Code), an appeal from an order of the court in probate made under section 1020.1 must show more than suspicion and conjecture that the fees awarded are excessive.

We have heretofore referred to the confusion in the record relating to the form of the assignments. Counsel for both parties have added to the confusion by incorrectly stating the record. One of the assignments charges the assignors to reimburse respondent for all his expenses ‘including attorneys' fees and court costs.’ The other assignment shows a deletion of the portion obligating the assignors to reimburse the respondent for ‘all sums paid as expenses herein.’ Since the respondent stresses the deletion of this portion of the assignment we may assume that the same position was taken by him in the probate court and that the meaning of the decree of distribution is that respondent is entitled to a ‘twenty-one-seventy-seconds' interest in the entire estate (being one-third of the interests distributed to the heirs he represents) without reimbursement for his expenses of litigation or attorneys' fees. Nevertheless respondent must have his costs on this appeal.

The appeal from the decree is affirmed. The appeal from the order denying the motion to reopen the proceedings is dismissed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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Docket No: Civ. 13010.

Decided: February 21, 1946

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

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