In re Estate of Sanderson

13 P. 497 | Cal. | 1887

TEMPLE, J.

This is an appeal by the executor from an order settling an account rendered by him to the probate court. We do not think it necessary to consider the question as to whether the issues made at the contest were sufficient. . The court had the power to examine, to allow or disallow, any items in the account, even though there were no contest; and, if it were brought to the knowledge of the court that the executor had failed to charge himself with money or property belonging to the estate, it would be the duty of the judge to examine the matter of his own motion. Such being the case, ' it must follow that the decree could not be held invalid for the lack of a proper contest or finding. If the contestant were appealing, his right to have the action of the court reviewed might depend upon a proper contest being inaugurated. That matter is not now before us, however.

The first point is in regard to the sale of currency for gold coin. It was sold without obtaining an order of court, and the sale was not approved. This was within the discretion of the court. The executor was properly charged with the Braly note. Had the executor followed the advice of a competent attorney as to a matter of law, the case would be different. Here it is a plain question of negligence. It was the duty of the executor to execute his trust himself, and he cannot rid himself of responsibility by employing an attorney to do that which he ought to have done himself. The delay was not in consequence of any mistake of law, or of advice given by the attorney. It is a simple failure on the part of the executor to do his duty. Nor is the liability joint with his co-executor. The note was in his individual possession, and the neglect was his. Each executor is responsible severally for his own acts, and for moneys or property which come to his hands. He may also, it is true, under some circumstances, be held for the default of his coexecutor. But that is because each is required to protect the estate, and prevent, if possible, injury from the misconduct of the other. But this is not a joint liability. When injury has resulted from the joint act of both, of course a different rule will prevail.

The order must be affirmed.

We concur: MeKinstry, J.; Paterson, J.