123 Cal. 331 | Cal. | 1899
The administrators of the above estate have appealed from the order settling their final account and directing a disposition of the estate in their hands. The estate is insolvent, and the account was contested by the surviving widow and one of the creditors of the deceased. The court disallowed some of the items of expenditures set up in the account and held that the administrators should be charged with compound interest upon certain moneys in their hands from the time of their receipt.
1. A former account of their receipts and expenditures prior to June 24, 1894, filed by them December 5, 1894, in which they had charged themselves with the proceeds of certain sheep sold by them in 1893, had been settled by the court at the sum of five thousand one hundred and sixty-three dollars and seventy-six cents. Certain items of expenditure which were omitted from that account were presented and allowed in the present account, and the court finds that they had in their possession on August 1, 1893, the sum of five thousand and seven dollars and nine cents, upon which they should be charged with compound interest from that date at the rate of seven per cent. It is contended by the appellants that the court erred in thus charging them with interest upon this amount.
An administrator is not to be charged with even simple interest upon the funds of the estate which may be in his hands, unless
The court finds that in July, 1893, the administrator Biddle-embezzled and wrongfully mingled with his own funds the proceeds of the sale of the sheep, and also that the administrators-were negligent in the management of the estate, and in failing; to file their final account and close up the estate at the proper time for doing so, and that the estate has been for three years, in a condition to file their final account and close it up. It is upon these findings that the respondents seek to sustain the order of the court charging the administrators with compound interest. We are of the opinion, however, that the claim of the appellants-that these findings are not supported by the evidence must be-sustained.
The court does not find, nor is there any evidence, that the-administrators used the funds of the estate in their own business, or made any profit from their use. The mere fact that one of them mingled the proceeds of the sale with his own funds would not justify charging him with interest thereon since he had the right to their custody, and there is no provision
2. At the hearing of the contest certain errors in the account -were discovered, from which it appeared that the administrators should be charged with four hundred and sixty-six dollars and one cent more .than was shown by the account as presented by them, and the court found that this amount had been embezzled by Biddle, and held that the administrators should be charged with compound interest thereon from April 1, 1894. This amount was made up of three items, viz.,- one hundred and thirty-nine dollars and one cent for an error in stating the account; sixty dollars collected for rent in the last three months of 1894; and two hundred and sixty-seven dollars collected for rents by suit, the date of the receipt of which is not shown, but it appears that it was not paid at the date of the former account. It is manifest that the administrators should
3. The appellants contend that the finding by the court that a claim of upward of seven thousand dollars against the estate in favor of Shoobert, Beale & Co. was purchased by S. E. Biddle for the sum of two hundred dollars for the use and benefit of the administrator, Biddle, is not sustained by the evidence. For the purpose of settling their account this finding does not affect the appellants, but to the extent that this is an indirect charge upon their integrity in the performance of their trust, and for that reason a basis for charging compound interest, they are justified in challenging the finding. Not only is there no evidence in support of the finding, but there is direct testimony to the contrary by both the administrator and his brother.
4. After settling the account the court in its order directed a pro rata payment upon the claims allowed, and also that five hundred and seventy-five dollars be paid to the surviving widow as a part of the family allowance previously ordered. The administrators claim to have paid this allowance in full, and that the court erred in directing this payment.
The disposition which the court might make of moneys in their hands belonging to the estate is immaterial to the administrators. All that they are concerned in upon a settlement of their account is to be credited with the various payments they have made, and to have the accounts settled according to the correct amount in their hands. Whatever disposition the court makes of this amount is no concern of theirs, and, if the parties interested therein make no objection to the order, they should be content.
The administrator testified that he had paid to the widow the whole of the family allowance, and produced a voucher from her which he procured a short time before the hearing, in which she acknowledges the receipt from the administrators of “one thousand dollars, balance payment of the eighteen hundred dollars allowed by the court for widow’s allowance.” The production of this voucher, purporting to be for the “balance” of the
5. After settling the account and apportioning the money in the hands of the administrators the court directed that “upon the payment into court and to the clerk thereof the sum of three thousand and twenty-nine dollars and eighty-two cents by the said J. D. Biddle, the administrator, which last-mentioned sum is to be paid out and distributed as hereinbefore directed, the said administrators shall thereupon be entitled to their discharge.” No authority is cited in support of this portion of the order, nor is it authorized by any- provision of the statute. The administrator is responsible for the assets in his hands, and so long as he remains in office is entitled to retain them in his possession until disposed of to the parties entitled thereto under the directions of the court. (Estate of Welch, 110 Cal. 605; De Greayer v. Superior Court, 117 Cal. 640; 59 Am. St. Rep. 220.) Upon the entry of an order for the payment of the claims against the estate the administrator becomes liable therefor to the creditors, both personally and upon his bond, and each creditor is entitled to an execution against him therefor. (Code Civ. Proc., sec. 1649.) He cannot escape this liability by complying with an order which the court had no power to make. (Estate of Spanier, 120 Cal. 698.) The court, therefore, erred in making this part of the order.
The order is reversed.
Garoutte, J., and Van Dyke, J., concurred.