125 Cal. 302 | Cal. | 1899
John Rathgeb, a resident of the county of Alameda, died July 26, 1897, leaving a will whereby he appointed Jules J. Agostini, Frank Bernasconi, and Albert Guttinger his executors. The will was duly admitted to probate on August 30, 1897, and letters testamentary were issued to said persons named as executors. On December 7th next following, said Agostini and Bernasconi filed with the court their verified peti
The statutory provisions under which the said proceedings were taken are in substance, so far as necessary to be stated, as follows: Whenever the judge of the superior court has reason
The court below found, among other things, that a certain ranch and mine and also a quantity of personal property situated in the county of Calaveras, and in the possession of Guttinger, belong to the estate of the testator and ought to be included in the inventory thereof, and that Guttinger has neglected to perform his duty as executor in failing and refusing to return and inventory such property as part of the estate. The appellant maintains that these findings were not sustained by the evidence. It appears that the whole value of the property as listed and appraised in the inventory actually filed is a little more than six thousand six hundred dollars, while the value of said Calaveras county property in the possession of Guttinger is one hundred and fifty thousand dollars. There is no dispute that it was all at one time owned by Rathgeb; but Guttinger, who is the nephew of Rathgeb, claims that the same was given to him by Rathgeb in his lifetime, and in support of his contention he produced at the hearing a deed,of "date January 23, 1893, purporting to be an absolute conveyance from Rathgeb to him of the said real property, under which, as he testified, he took possession of the described premises about January 24, 1894, and ever since has held the same. There was no personal property described in the deed; and the record does not show specifically of what the Calaveras county personalty consisted;
For, although Guttinger stated in a general way that his uncle gave him the personal property, yet he testified to no word or act of Rathgeb sufficient to constitute a gift thereof. The order on Holland for possession of the same, which he said was his only title, did not show a gift. It is also to be observed in considering the statement of Guttinger that the court below was the judge of his credibility; his testimony, in some material particulars, was confused and to some extent contradictory of itself; while this may well have been the result of innocent lapse of memory, or want of skill in our language (he being a Swiss), yet on appeal we are unable to say that the remark of the trial judge, in announcing his decision, that Guttinger’s testimony had not been "at all satisfactory,” is not warranted by the record.
It is contended that the statute of limitations as to said personal property had run in favor of Guttinger before the death of Rathgeb. Waiving other considerations on this point, it is sufficient to say that no defense under the statute was proved; for although Guttinger may have had possession of the chattels for more than three years before his uncle’s death, it is shown that he came into possession permissively; it is therefore to be presumed that he held them as Rathgeb’s bailee, and it does
A further argument advanced is that Guttinger’s position antagonistic to the estate in respect to the property is no ground for his amotion from the office of executor. Estate of Bauquier, 88 Cal. 302, is cited to sustain this contention. It was held in that case that letters testamentary cannot be refused to the executor named in'the will on the ground that he claims, as his own, property which legatees insist belongs to the estate. The court there dealt with the statute prescribing the grounds for refusing letters upon application therefor (Code Civ. Proc., sec. 1350), and held that the courts have no right to add to the disqualifications imposed by the legislature in such cases. The case here is different; for, as the court said in the case cited: “The executor may always be removed after appointment unless he discharges the duties of his trust faithfully and as directed by law”; necessarily, therefore, the court has power to determine, for the purposes of an inquiry into that question, whether the executor has refused wrongfully to inventory or otherwise account for property of the estate in his possession, and to remove him if he persists in such conduct; else the necessary steps required by law in the course of administration might be indefinitely delayed or prevented by his mere assertion of title to the property in himself. (See Deck v. Gherke, 6 Cal. 666.) In our opinion, the evidence was sufficient to justify the decision that Guttinger wrongfully refused to return and inventory the Calaveras county personalty as a part of the estate of Rathgeb, and without sufficient reason asserted ownership thereof in himself; this was a clear neglect of his duty as executor, and was statutory ground for his removal. It is proper, perhaps, to add that neither the decision here nor that of the court below can estop Guttinger in a suit against him to recover any of said property for the estate; the superior court, in this summary proceeding, is not competent to decide finally upon the question of title.
It is also contended that no proper issues were made or tried touching the liability of Guttinger to be removed. This contention seems to rest mainly on the circumstance that no formal statement of charges was filed except the petition of De
Some minor questions of procedure are raised. We have inquisitively examined them all and find no prejudicial error. The order appealed from should be affirmed.
Haynes, 0., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.
Hearing in Bank denied.