Pennie v. Roach

Foote, C.

This is an action by Pennie, the administrator of the estate of Thomas H. Blythe, deceased, for an accounting against John Poach, as the executor of the last will and testament of Philip A. Poach, deceased, who had preceded Pennie as the administrator of Blythe’s estate.

Judgment was given and made in the premises, from which the plaintiff prosecutes this appeal upon the judgment roll and a bill of exceptions.

The first contention of the plaintiff is, that the judgment is void, because it is in favor of Mr. John A. Wright, an attorney at law, not a party to the action.

Conceding without deciding that under the decision in Sharon v. Sharon, 75 Cal. 39 , so much of the judgment as orders the payment to John A. Wright, Esq., of a certain sum of money is void, yet that part of the judgment may be disregarded, and still the judgment can stand and be enforced, so far as it directs the payment to the defendant Poach, executor, of that sum of money for the use and benefit of said Wright. It is certainly competent for this court, if it were necessary, *520 to modify the judgment by striking out the words “ or to the said Wright in person.”

But we do not perceive how the plaintiff can be injured by the judgment remaining as it is. All that he can ask is such a judgment as it will be a proper voucher to him in his settlement of his decedent’s estate. He can pay the executor, defendant, and refuse to pay Wright in person if he desires, as the judgment now stands, and there is no compulsion to pay Wright anything. If it is error, therefore, it is harmless.

So far as the evidence of the value of Wright’s services is concerned, the preponderance is in favor of the correctness of the decision made by the trial court.

The defendant introduced the testimony of six prominent members of the bar of San Francisco, who stated that the services of Mr. Wright were reasonably worth $150,000. Another prominent attorney estimated his services to be worth $136,600. It is true, three witnesses for the plaintiff equally eminent in the profession testified that his services were worth only seventy-five thousand dollars, but it was for the court to decide the conflict, and in such cases its ruling will not be interfered with by the appellate court, unless there is a clear abuse of discretion. (Stuart v. Boulware, 133 U. S. 78 .) It appears that the affairs of the estate, which was valued at nearly three millions of dollars, were in great disorder, and a successful administration thereof depended upon diligent, intelligent, and systematic labor. Claims amounting to nearly half a million dollars were presented against the estate, but through successful litigation and arbitration, conducted chiefly by Mr. Wright, such claims were reduced over a quarter of a million of dollars. His labors covered nearly six years of time, ten months of which were spent in Mexico and Europe.

The point is made that there is no allegation in the answer that the claim of Wright was ever presented for allowance to the executor of Phillip A. Roach, or proof made of its presentation. The point as to the want of *521 proof is made here now for the first time, and cannot be considered. (Drake v. Foster, 52 Cal. 227 .)

It is said by the appellant that the answer does not allege that Mr. Wright had any valid claim against the estate of Philip A. Roach, and hence the executor of Roach could claim nothing from the estate represented by the plaintiff, Pennie. In this behalf it is urged that the pleading in question does not aver, as it should, that the claim of Mr. Wright for legal services had been presented to the executor of Roach within the time required by law for such presentation for allowance. As the answer avers the liability of Roach to Wright for the services he performed at Roach’s request, it sufficiently states a cause of action.

It is urged, also, for a reversal of the judgment, that the court below had no jurisdiction, as a court sitting in equity, to determine the amount of Mr. Wright’s fee, or to withhold for further consideration and determination the amount of commissions due P. A. Roach for administering upon the Blythe estate. But under the present state constitution, the superior court has jurisdiction both in equity and matters of probate; it is the same superior court for all purposes where it has jurisdiction. If it has jurisdiction of the person and subject-matter, and it is admitted that as to matters of accounting between the estate of a deceased administrator and his successor it can assume such jurisdiction, then it can administer full and entire relief according to the principles of equity, and also in accordance with the statutes which exist with reference to matters of probate, or any others within the court’s jurisdiction.

This, we think, disposes of the objection made on this head, and what we have said is in accordance with the views of this court in the matter of Estate of Burton, 98 Cal. 459 .

As to the point made, that the claim of Wright must have been first paid by Philip A. Roach, deceased, in his lifetime, before it could be allowed, it is disposed of *522 against the contention of appellant in Estate of Couts, 87 Cal. 480 .

We perceive no error in the record, and advise that the judgment be affirmed.

Belchee, C., and Fitzgebald, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is affirmed.

A petition for a hearing in Bank having been filed, the following opinion was rendered thereon on the thirteenth day of June, 1892:— The Court.

Rehearing denied. In response to one point made in the petition for rehearing, we will say, in addition to the opinion heretofore filed, that that part of the decree in this case relating to the compensation and commissions of Philip A. Roach, deceased, properly construed, does not reserve any power to the superior court, sitting as a court of equity, to adjust, in this proceeding, the amount of commissions or compensation to be allowed to the administrators of the Blythe estate, or to apportion said amount among the respective administrators, but merely reserves the power to require payment to the defendant by the plaintiff, or his successor, of such sum as the probate court may award on final settlement of the Blythe estate to the representatives of Philip A. Roach for his services as administrator.

Mr. Justice Harrison took no part in the foregoing decision.