McChesney v. Knox

Citations

• 119 Cal. 489
• 51 P. 706
• 1897 Cal. LEXIS 926

Syllabus

<p>Estates of Deceased Persons—Substitution of Attorneys—Allowance op Counsel Feb—Jurisdiction—Notice of Hearing—Appearance of Parties—Recital in Order—Objection upon Appeal.—After the substitution of attorneys for an executor has been ordered, the court has jurisdiction to allow a counsel fee to the retiring attorney in advance of the final settlement of the estate; and where the executor appealing from the order of allowance, and all persons interested in the estate appeared and took part in the proceedings upon the application for such allowance, and the order of allowance so recited, and there is nothing in the record upon appeal of the executor to contradict such recital, it must be taken as true, and a general claim of want of jurisdiction to make the order cannot be supported upon such appeal, for the first time, upon the ground of the lacs of service of formal notice of the hearing upon the parties interested.</p> <p>Id.—Effect of Allowance of Counsel Fees—Liability of Estate—Contract with Executor—Personal Liability—Release—Payment—Acquittal of Executor.—The determination of the court in allowing counsel fees to an attorney is not a determination of the contract made by the executor and attorney as to the fee to be paid, but relates simply to the amount of fee the estate should be held to pay, and, if any greater amount is agreed upon, it is purely a personal matter between the contracting parties; and where the amount allowed is not less than the sum agreed upon, and by the contract of the parties the fee was to be fixed by the court according to the value of the services rendered, such agreement is in effect a perfect release of the executor from any personal liability for an attorney’s fee; and in such case an allowance of a fee to the attorney by the court, and its payment by the executor to the attorney after such allowance, will acquit the executor of liability to the estate as to that matter in the future settlement of his accounts.</p>