In re Estate of Levinson, No. 15916

No. 15916 | Cal. | Aug 6, 1895

Lead Opinion

The Court.

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" court="Cal." date_filed="1893-12-30" href="https://app.midpage.ai/document/in-re-lux-5446796?utm_source=webapp" opinion_id="5446796">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" court="Cal." date_filed="1889-08-05" href="https://app.midpage.ai/document/in-re-rose-5444190?utm_source=webapp" opinion_id="5444190">80 Cal. 166, and on the authority of that case we consider that the evidence here is open for examination.

2. Respondent further contends that the specifications of insufficiency of the evidence to justify the decision appearing in appellant’s bill of exceptions are not stated so as to answer the requirements of section 648 of the Code of Civil Procedure. The specifications supposed to be faulty are set out in this manner: “ The evidence is insufficient to justify the decision in each and every one of the following particulars, respectively: 1. Allowing $500 or any sum for Henley & MacSherry; 2. Allowing $343.91 or any sum to said administrator for commissions; 3. Allowing said item of $50 alleged to have been paid to Dr. C. F. Buckley,” etc. We think the specifications are sufficient; the account is itself a, bill of items, and when the respondent was informed by the specifications of the several items which appellants deemed to be unsupported by the evidence, he certainly was advised of the particulars wherein he should: take note whether the evidence, if any, sustaining the account, appeared' in the bill of exceptions when proposed; and this we understand to be a main object of the requirements of such specifications by the statute. (Code Civ. Proc., 648.) The case differs obviously from Estate of Page, 57 Cal. 238" court="Cal." date_filed="1881-07-01" href="https://app.midpage.ai/document/in-re-estate-of-page-5440119?utm_source=webapp" opinion_id="5440119">57 Cal. 238; there no attempt was made to specify any deficiency of evidence.

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 preceded in the administration of the estate by one S. W. Eaveley, named executor in the will of the deceased. Eaveley had been on the settlement of his account credited with the sum of $15,441.98, of which $700 was for his own commissions. He paid over to Mr. Goodwin, his successor, the respondent here, the balance in his hands, belonging to the estate, amounting to $6,254.91; respondent received from other quarters $223.34; making the total funds of the estate coming to his hands $6,478.25, and the total value of the estate accounted for $21,920.23. On this sum the commissions allowable under section 1618 of the Code of Civil Procedure amount to $997.60; while the sum of $1,043.91 has actually been allowed, and the administration is yet unclosed. It is suggested by counsel that the presumption should be indulged that the allowance made to respondent included some thing for extraordinary services under section 1618 of the Code of Civil Procedure. But his account makes no claim for such services, and it is expressly stated in the order that he “is entitled to $343.91 as commissions.” The presumption does not arise. (In re Moore, 96 Cal. 526, 527.)

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" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/estate-of-barton-5439724?utm_source=webapp" opinion_id="5439724">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 contestants produced a paper writing signed by him, dated March 2, 1892, and acknowledging the receipt from one of them of $240 toward payment of expenses on behalf of the legatees “ in exporting the books of Newman & Levinson.” Being asked to explain the receipt, the witness said he had no explanation to give; he also said that he had given no credit in his account for said $240. The court allowed the full sum claimed for compensation of experts. We think the administrator mistook; and that the circumstances were such as to require him to explain that the money had by him as evidenced by the receipt was used to pay for services different from or in addition to those specified in his account, or, for other reason, was not chargeable to him; and that, failing so to do, his credits should have been reduced by said sum of $240.

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 below seems to have concerned the allowance of this item. Appellants make two points in this connection: 1. That the services were of no value; and '2. That an order directing payment to counsel who are strangers to the proceeding is void. As to the first, it suffices to say that the evidence was conflicting; while it pretty clearly appears that there was a wide divergence of opinion between Messrs. Henley & MacSherry, and counsel associated with them, as to the policy to be pursued in the later stages of the trial of that cause, and that they, Henley & MacSherry, then entertained small hope of ultimate success,, and so were insistent (as was the administrator) on a proposed compromise, which, if effected, would have given the estate little if any thing more than the expenses of the action, yet it does not appear but that the course they recommended comported with the proper discharge of professional obligation; in' the light of the event it seems that it would have been most to the interest of the estate; and, without signifying approval of all the methods employed by them and by the administrator in the effort to bring about such compromise, it ought to be said that the evidence does not substantiate appellants’ charge that they and the administrator “ became traitors to the interests of the decedent’s estate, and treacherously exerted themselves to bring about a judgment for the defendants.”

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" court="Cal." date_filed="1892-03-10" href="https://app.midpage.ai/document/henry-v-superior-court-5445844?utm_source=webapp" opinion_id="5445844">93 Cal. 569; Estate of Blythe, 103 Cal. 350" court="Cal." date_filed="1894-06-29" href="https://app.midpage.ai/document/welsh-v-pennie-5447140?utm_source=webapp" opinion_id="5447140">103 Cal. 350; Pennie v. Roach, 94 Cal. 515" court="Cal." date_filed="1892-05-13" href="https://app.midpage.ai/document/pennie-v-roach-5445972?utm_source=webapp" opinion_id="5445972">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 assistanee of counsel in defending himself against the same; it would be otherwise if the charges were sustained. (Wcerner’s Law of Administration, sec. 516.)

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:

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Remittitur

The Court.

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" court="Cal." date_filed="1858-07-01" href="https://app.midpage.ai/document/gray-v-gray-5433935?utm_source=webapp" opinion_id="5433935">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" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/people-v-sprague-5440086?utm_source=webapp" opinion_id="5440086">57 Cal. 147; Rowland v. Kreyenhagen, 24 Cal. 52" court="Cal." date_filed="1864-07-01" href="https://app.midpage.ai/document/rowland-v-kreyenhagen-5435412?utm_source=webapp" opinion_id="5435412">24 Cal. 52.)

Motion denied.