65 P. 965 | Cal. | 1901
Jeanie A. Coursen died testate in 1877, naming William P. Stout and G. A. Coursen as executors, and her will was shortly after duly probated, and letters issued to the executors. An inventory was filed and notice to creditors published. No claims have been presented
1. In the specifications of errors of law appellant makes the objection that the court was without jurisdiction to make distribution for the reason that the petition for final distribution was not filed with the final account, but was filed afterward, and before the final account was settled. The point was before the court in Re Sheid’s Estate, 122 Cal. 528, 55 Pac. 328, and directly decided, and it was held that the court in such case did not acquire jurisdiction. The statutory provisions were fully pointed out in the opinion, and the question clearly elucidated, and the decision must rule this case. Respondents reply that the petition need not be considered under section 1665 of the Code of Civil Procedure, but may be regarded as filed under section 1663 of that code. The latter section relates wholly to partial distribution, and contains provisions with which there was no pretense of complying in the present matter. The petition here was brought under the provisions relating to final distribution, and the decree was for final distribution. Apparently it was just such a case as In re Sheid’s Estate. The decree was without authority, and must be reversed.
There are some other questions connected with the decree of distribution which should be noticed. In- the will of the testatrix she devises to her son William P. Stout all her right and interest in and to the estate owned by his father, her first husband, at his death. The decree distributes the residue of said estate “hereinafter particularly described” to the second husband of the testatrix and to her surviving children by him, describing the property, “and any other property not now known or discovered, which may belong to the said estate, or in which the said estate may have any interest.” There is at least a question whether this provision would not carry any after-discovered property belonging to the testatrix’s first husband at his death, and would bind her legatee, Stout, as he is a party to the proceeding. And this doubt is strengthened by the fact that the decree makes no mention of his right to any such property. We think the decree should have made some disposition of this asset of the estate.
Appellant makes the objection that there could be no distribution of the interest of the deceased children, Grant and Geraldine, in the estate, until after separate administration of their several estates. We see no objection to the decree in this regard. Moreover, appellant, as executor, cannot be heard as to the distribution made: Bates v. Ryberg, 40 Cal. 463. See, also, In re Welch’s Estate, 106 Cal. 427, 39 Pac. 805, where certain limitations of the rule are pointed out, within which appellant does not bring himself. As legatee he is not aggrieved, because he makes no' claim to any share of the deceased children’s property.
2. All the legatees, except appellant, filed written consent to the approval of the account as rendered by executor Coursen. In appellant’s account, which is verified, he states that the only money left by deceased, to wit, $180, was taken possession of by his coexecutor, “and by him used in paying necessary expenses incurred during the administration of the affairs and business of said estate.” All parties agreeing that the money was properly expended, and executor Stout not being interested as a legatee of and making no claim on the money, there was no error prejudicial to appellant in allowing the account without vouchers. Appellant was secured for any commissions to be allowed him and for attorneys’ fees by the real property to be distributed, and petitioners offered in their petition to pay all commissions and charges.
3. Appellant’s account consisted of sundry charges for moneys alleged to have been paid out by him for taxes on the real property of the estate and for improving the street in front of the property, aggregating $956.32. He produced certain tax receipts, showing that the taxes had been paid to and received by the tax collector; but they do not show on their face who paid the money. Appellant testified that he
4. The court allowed one-half the commissions to appellant on the basis of $20,000 as the value of the estate accounted for by executor Stout, being one-half of $920, and the court also allowed to -executor Scott $50 as attorneys’ fees. It is claimed by appellant that he should have been allowed extra compensation for services as executor, and also should have been allowed a larger attorney’s fee. We can discover no grounds for any greater allowance. The real property was in the possession of the family all the time, and during much of which appellant was an inmate of the family, and occupied a room in the dwelling. Appellant claims that the estate was of greater value than $20,000. The inventory returned the value of the estate at $35,180. But a recent reappraisement placed the value of the real property at $18,187.50. There was evidence that the largest offer made for the property was $20,000, and a witness familiar with real estate values in San Francisco placed the value at $20,000. As to the.$180, no part of this money ever came into the hands of appellant, or under his control, as co executor, nor was it disbursed by him. His coexecutor had it in his possession at the death of Mrs. Coursen, and paid it out for the benefit- of the estate. We cannot see that the court erred in excluding it from the amount on which appellant was allowed commissions: Hope v. Jones, 24 Cal. 90. The inventory value of the property is not conclusive in fixing the compensation to the executors: In re Simon’s Estate, 43 Cal. 543; In re Fernandez’s Estate, 119 Cal. 579, 51 Pac. 851.
5. During the early years of the administration, appellant acted as attorney and co executor, but this did not necessarily entitle him to extra compensation. We have examined the evidence bearing on the extra services claimed to have been performed by appellant, and are of the opinion that the court rightly refused additional compensation.
6. Appellant’s attorney appeared for appellant in 1898, and the only service performed by him, as shown by the evidence, was in the preparation of appellant’s account and attending at its hearing, and in opposing the coexeeutor’s
7. Objection was made to the decree on the alleged ground that the taxes on the property were not paid. It appeared that the executors had procured the taxes to be paid by other persons, who hold tax deeds on some portion of the property, confessedly for the benefit of the owners. The object of the statute (Pol. Code, sec. 3752) in requiring all taxes to be paid before distribution can be made is to protect the revenues of the state. As the tax was in fact paid, it was no objection to distribution that there was an outstanding tax title in the person who paid the taxes. It is advised that the decree settling and allowing the final account of coexecutor Coursen and disallowing the account of coexecutor Stout be affirmed and that the decree of distribution be reversed.
We concur: Haynes, C.; Gray, C.
For the reasons given in the foregoing opinion the decree settling and allowing the final account of coexecutor Coursen and disallowing the account of eoexeeutor Stout is affirmed and the decree of distribution is reversed.