222 P. 145 | Cal. Ct. App. | 1923
William Perry Card died intestate in Oklahoma. At the time of his decease he was a resident of that state. When he was in his last illness, as it afterward transpired, he wired his daughter, Addie V. Stewart, who resided in Los Angeles County, California, that he was ill and she immediately proceeded to Oklahoma by train. Mrs. Stewart *269 had no reason to suppose that her father's death was imminent and prepared to remain in Oklahoma long enough to nurse him back to health. Unfortunately, however, he passed away before she reached his bedside. Card had been married twice and Mrs. Stewart was a child of his first matrimonial union. His second marriage had been dissolved by divorce. At the time of his decease he had residing with him two minor sons, the fruits of this latter union. Up to within a few days before his death Card was the owner of 180 acres of land in Oklahoma, but at that time he transferred the property to his sons in consideration of love and affection. At his decease he left in Oklahoma certain cash, cattle, and other personal property. The cash was in bank and was by Mrs. Stewart, immediately upon her arrival in the state, withdrawn by means of signed checks which Card had prepared prior to his decease. She also converted into cash the cattle and other personal property. These steps toward a summary administration of the estate of Card were all taken without the sanction of the laws of Oklahoma providing for the settlement of the estates of deceased persons. Out of the proceeds thus arising from her father's Oklahoma property Mrs. Stewart then paid out certain amounts, for purposes which are specifically shown below, and departed for California with the balance remaining in her hands, the sum of $600. This amount was consumed by the order for family allowance hereafter to be mentioned. On her return to California Mrs. Stewart was accompanied by her two minor half-brothers.
Card left real property in the county of San Diego, in this state, appraised at $750. He left no other property in California. After her arrival in this state Mrs. Stewart applied for letters of administration in San Diego County and they were issued to her. Upon the presentation of her first and final account, after the settlement of which her trust as administrator was terminated, she was allowed credit for certain amounts which she had expended on and in connection with her journey to Oklahoma and return. The items constituting these expenditures are stated thus in the account: "Amount of railroad fare to Oklahoma and return to conserve property of deceased, $103.64. Railroad fare for Perry Madison Card and William Purl Card from Denison, Texas, to Los Angeles, $99.82. Expense of berths for *270 said minors from Denison, Texas, to San Antonio, $8.42. Railroad fare from Caney, Oklahoma, to Denison, Texas, $2.50. To Doctor's fees paid to Dr. Henderson of Oklahoma, for services to deceased, in his last illness, $65.00. Paid to druggist for medicine for the deceased during his last illness, $1.60. Paid to Mr. Cooper of Oklahoma for coffin and funeral expenses of deceased, $60.00. Paid for groceries being an indebtedness of deceased, $7.48. Paid to C. L. Skinner of Oklahoma for pasturage of decedent's cattle, $3.50. Paid for writing contract and telephone bill at Oklahoma, $1.40. Paid to [six named persons] for gathering cattle upon range at Oklahoma, $39.00. Paid to Mr. Cooper for feed and care of cattle, $6.50. Paid to T. M. Akers, Notary Public, $2.50. To A. L. Childress for board for said minors, $11.40. For grave marker for decedent, $35.00. Amount paid for coats and caps for minors, $14.50. For taxes on property in Oklahoma, $29.80. To two pairs of stockings for said minors, $.50. For suits, shirts, underwear and overalls for said minors at Oklahoma, $40.00. To expenses for board, etc., for said minors from Oklahoma to Los Angeles, $15.39. J. A. Dirke for horse hire for gathering cattle, $4.50." These items make a total of $587.55, and it will be observed that they alone, without regard to attorney's and administrator's fees and other costs of administration, practically consume the California estate, appraised, as we have already remarked, at $750. There is a difference of but $162.45 between the two amounts. One Clara Card asserts a claim against the estate upon a California judgment for $1,380, together with $16 costs, rendered in March, 1919, with interest from that date. That creditor and the present administrator of the estate appeal from the order of the trial court settling the account of Addie V. Stewart, as the former administrator, and from a certain order granting a family allowance to the minor sons of decedent.
[1] Appellants contend that the trial court erred in giving Mrs. Stewart credit as administrator for each of the items set forth above and totaling $587.55. No verified claim was presented against the estate as to any of these items, and appellants insist for that reason that none of them may be allowed. We see no escape from this contention. The necessity for the presentation of verified claims *271
by creditors of the estates of deceased persons is fixed by sections 1493-1496 of the Code of Civil Procedure, but it is provided in another section of the same code (sec. 1632) that executors or administrators may be allowed credit upon the settlement of their accounts for amounts paid under certain circumstances upon demands not founded upon verified claims. The section reads, in part: "If . . . it appears that debts against the deceased have been paid without the affidavit and allowance prescribed by statute . . . and it shall be proven by competent evidence to the satisfaction of the court that such debts were justly due, were paid in good faith, that the amount paid was the true amount of such indebtedness over and above all payments or set-offs, and that the estate is solvent, it shall be the duty of the said court to allow the said sums so paid in the settlement of said accounts." Although the application of this enactment is limited, in strictness, to those cases in which executors or administrators make voluntary payments of demands, there are instances in which such payments, when made by individuals who later become executors or administrators, will be approved and due credit given. It is said in an opinion of the district court of appeal which was adopted by the supreme court: "There was allowed to the administrator credit for a payment of one thousand five hundred dollars to the Portuguese-American Bank. . . . This payment was made . . . four days subsequent to the date of filing his petition for letters of administration. Whether a payment could be allowed when made by a stranger to the administration and before he had become connected therewith need not be at this time determined, although some California authorities incline to their allowance. (In re Galland's Estate,
[2] The only remaining point relates to the order for family allowance. On July 21, 1922, the court made its order awarding to each of the minor sons of decedent the sum of $25 per month from January 27, 1918, to January 27, 1919, or the total sum of $600. Appellants contend that the court was without jurisdiction to make such an order for a period of time which had already passed and during which the minors had been maintained from other sources. The order was proper under section 1464 of the Code of Civil Procedure, as construed inEstate of Moore,
The order for family allowance is affirmed. The order settling the first and final account is reversed, with directions to the trial court to disallow the credits above mentioned, amounting to $587.55.
Finlayson, P. J., and Craig, J., concurred. *274