108 Cal. 450 | Cal. | 1895
Lead Opinion
Appeal by certain legatees named in the will of John Levinson, deceased, from an order settling the account of J. W. Goodwin, administrator with the will annexed of the estate of said deceased. The administrator was charged with misconduct in the discharge of his trust, and was cited to show cause why his letters should not be revoked; thereupon, on February 14, 1893, he filed the account in question, and tendered his resignation of his office of administrator. The order appealed from declared the charges against respondent to be without foundation, allowed his account as presented—with the exception of'a single item —and directed that upon the production of a receipt for the balance of funds of the estate in his hands, ascertained to be the sum of $4,729.94, from one Ira P. Rankin, who was appointed special administrator to succeed him, the respondent be discharged from further liability.
3. The legatees filed their exceptions to the account March 3, 1893; a hearing was had upon the objections thus made, and on September 12, 1893, the court orally announced its decision, stating the terms of the order to be drawn allowing the account; such order was signed by the judge and filed with the clerk September 16,1893, and was entered in the minute-book of the court October 6th following. The appeal was taken December 4, 1893. Respondent insists that the order is a judgment (Miller v. Lux, 100 Cal. 609); that the appeal was not taken “ within sixty days after the rendition of the judgment” (Code Cov. Proc., 939), and hence that the evidence upon which the decision rests cannot be reviewed. But this question has been made the subject of investigation by the court in Estate of Rose, 80 Cal. 166, and on the authority of that case we consider that the evidence here is open for examination.
3. Findings of fact were not waived, and the court made none. Appellants claim that for this reason the order should be reversed. The manner in which the account of an executor or administrator is usually made up, and the manner in which objections thereto are usually presented (and this case shows no exception), do not at all conduce to the development of issues such as arise upon the pleadings in a civil action, and to which findings are required to -be responsive. (Code Civ. Proc., 590, 633.) And it has been said here obiter, but we think correctly, that “ in such a proceeding it is not incumbent upon the court to make and file express findings.” (Miller v. Lux, supra.)
4. The court allowed to the respondent the sum of $343.91 as commissions. It appears that he was pre
Under the circumstances disclosed by the record nothing can be allowed respondent for commissions until the final settlement of the estate. (See Estate of Barton, 55 Cal. 87, and cases there cited.)
5. Eespondent engaged in litigation on behalf of the estate against William J. and Benjamin Newman, former partners, of decedent in the firm of Newman & Levinson, and employed certain expert accountants to examine the books of the partnership, for the purposes of such litigation. He claimed credit for $673.30 paid for the services of said experts. The payments to them, as shown by the account, were made in sums ranging from $25 to $80, beginning in January, 1892, and continuing at intervals for nearly a year following. Testimony was given that at first the money to pay said experts was furnished by the legatees. On cross-examination of the administrator as a witness at the hearing contest
The allowance of the further sum of $433.30 paid to said accountants was a matter committed to the sound discretion of the court; there is no proof that such discretion was abused. (See Estate of Moore, 72 Cal. 336.)
6. The following credit item appearing in the account was allowed: “ Dr. 0. F. Buckley, services, $50.00.” The administrator testified that payment thereof was made to Dr. Buckley for attendance as a witness on a motion for a receiver in a certain action instituted by the administrator; that he attended one day. The statute fixes the fees of witnesses at $2 per day. Why the further sum of $48 was paid does not appear in the record; its allowance was therefore erroneous.
7. The order appealed from directs that the sum of $500 be paid out of the estate to the law firm of Henley & MacSherry “ for services rendered the estate and the administrator in the management of the estate.” The services referred to were rendered in the conduct of the respondent’s suit against the Newmans. The claim is stated in the account as among the “ bills outstanding,” no sum being named; but at the hearing said attorneys presented a statement claiming an allowance of $1,000 for their services. The principal contest in the court
There was error, however, in the direction that the payment be made to the attorneys. Like other necessary expenses incurred in course of administration, the fees of counsel are to be allowed out of the estate to the executor or administrator; such is the reading of the statute (Code Civ. Proc., sec. 1616), and the effect of the decisions of this court. (Estate of Ogier, 101 Cal. 385; 40 Am. St. Rep. 61; Henry v. Superior Court, 93 Cal. 569; Estate of Blythe, 103 Cal. 350; Pennie v. Roach, 94 Cal. 515; Sharon v. Sharon, 75 Cal. 38.)
8. Since the court found that the charges of misfeasance against the respondent were false, it properly allowed him credit for the item of $100 paid for assist
The cause is remanded, with instructions to the superior court to modify the order appealed from in these particulars, viz: 1. Striking out therefrom all allowance for commissions, with leave to respondent to move for an allowance of his reasonable proportion of commissions upon the final settlement of the estate; 2. Allowing to respondent $500 for services of his attorneys, Henley & MacSherry, and striking out the allowance to said attorneys; 3. Allowing for services of experts $433.30, instead of $673.30; 4. Allowing for payment of Dr. Buckley $2, instead of $50. And as thus modified the order will stand affirmed.
Hearing in Bank denied.
A motion having been made to recall the remittitur, the following opinion was rendered thereon on the 23d of November, 1895:
Remittitur
Motion to recall the remittitur herein for the purpose of securing a modifical of the direction made therein for the payment of the costs of the appeal.
Without reference to the merits of the motion, it comes too late. The remittitur was regularly issued on September 6, 1895, and this motion was not noticed until October 18th following. If respondent desired a modification of the judgment in any respect, the proper application should have been made before the going down of. the remittitur. (Gray v. Palmer, 11 Cal. 341.) When the remittitur has been duly and regularly issued, without inadvertence, we have no power to recall it. This court thereupon loses jurisdiction of the cause, except in a case of mistake, or of fraud or imposition practiced upon the court, neither of which elements appear in this case. (People v. Sprague, 57 Cal. 147; Rowland v. Kreyenhagen, 24 Cal. 52.)
Motion denied.