Cole v. Superior Court

McKee, J.,

dissenting. — I dissent. The moneys collected by the petitioner in this proceeding, as attorney at law for liis infant clients, constituted the estate of the infants. To the possession of the estate and of the persons of the infants the general guardian was entitled. The guardian was subject to the supervision, and amenable to the orders of the Superior Court, sitting as a Probate Court; and the estate was a probate matter, over which the court had, as a Probate Court, under § 5, article vi., of the Constitution of 1879, the exclusive jurisdiction. As such it alone had authority to ascertain and determine the proper amount of compensation to which the attorney for the infants was entitled for the services which he had rendered in seeming the estate of the infants; and upon presentation of a petition or claim against the estate for such services, it could, in the exercise of its jurisdiction, allow and order paid out of the estate what was just and reasonable.

But the Superior Court, sitting as a court of law, exercising its jurisdiction over parties to an action at law, in which a money judgment had been rendered and satisfied, had no jurisdiction of the money collected in satisfaction of the judgment, as part of the estate of the infants. Nor had it jurisdiction to ascertain and determine in the action the amount of compensation to which the attorney for the infants, who collected the judgment, was entitled for his services. The guardian could not make any contract with the attorney which would be binding on the estate of his wai’ds. Such a contract, if made, would be, so far as the estate is concerned, null. (Paige’s Estate, 57 Cal. 238 ; Danielwitz v. Sheppard, 62 Cal. 339 .)