McLellan v. De GearMcLellan v. De Gear
This is an appeal by the trustees of a testamentary trust created by the will of Mary Belle McLellan, deceased, from portions of a decree settling their second account. The contest thereto was instituted by respondent, who is the beneficiary of the trust and sister to the trustees. The subject-matter of the appeal involves three rulings of the superior court, first, in charging the trustees with interest amounting to $206.57; secondly, in disallowing as a credit a sum of money expended by the trustеes in taking and prosecuting an appeal from the decree settling their first account; and third, in fixing the amount of compensation to be paid to the trustees and their attorneys.
The dispute about the item of interest arose out of these facts: In conformity with directions given by the Supreme Court in its judgment of reversal on the previous appeal
(Estate of McLellan, 8
Cal. (2d) 49 [
For the purposes of this appeal it may be conceded that the indebtedness of $1666 established by said decree to be due respondent “as of, and on, June 7th, 1935”, the date of the filing of the first account, bore intеrest at the legal rate from the due date thereof, and that a lawful demand therefor could have been properly made at the time said indebtednеss was paid on February 26, 1937; but as shown by the terms of the “Receipt and Satisfaction” given by respondent and her attorney at the time of such pajunent, respondent accepted said sum of $1666 in “full satisfaction” of the obligation due under said decree; and that being so, under *21 well-settled rules, she was estopped thereаfter from claiming more. In other words, while the probate decree finding the amount due and directing the payment thereof did not have the technical legal effect of a civil judgment in favor of respondent and against the trustees for the amount so found to be due (Estate of McLellan, supra), nevertheless, as evidenced by the language employed in said “Receipt and Satisfaction”, respondent and her attorney treated said decree as a judgment, and in receipting for the paymеnt of the amount called for thereby acknowledged “full satisfaction of said judgment”. Such being the case, the law will not permit her afterwards to take the opposite position and uphold the demand subsequently made by her for additional payment thereunder. As declared by section 1541 of the Civil Code, an obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. It is true that as provided in thе next code section, 1542, a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor (sec. 1542, Civ. Code). But the instrument in question here is not a general relеase. By its terms it is restricted to the single obligation established by the decree. Then again, said instrument being signed by respondent and by her attorney as well, it will be assumed in the аbsence of any evidence showing to the contrary that at the time they signed the same and receipted in full satisfaction of the judgment they were as cognizant of respondent's asserted right to interest as they were a month later, when the second account was filed. At any rate, so far as the record shows, nоthing had transpired within the month to alter the situation. It is our conclusion, therefore, that respondent’s claim for interest in the sum of $206.57 was improperly allowed.
Appellants’ contentions respecting the remaining two rulings are without merit. By the express terms of the judgment rendered on the previous appeal reversing the dеcree settling the first account it was directed that respondent should recover her costs on such appeal. Therefore the refusal of the superior court at the time of the hearing of the second account to reimburse the trustees for the costs *22 of said appeal out of the trust estatе of which respondent was beneficiary, was in conformity with the directions given in said judgment of reversal.
The decision on the previous appeal is also determinative of the question of fees. In this regard it was held therein, among other things, that there had been an unauthorized and consequently an illegal commingling by the trustees of the trust estate with their individual interests, to their own profit; that the matter of tEe allowance of compensation to the trustees and their attorneys was in the sound discretion of the superior court; and that in fixing the same the court had the right to consider the actions of the trustees in the management of the trust proрerty. And so here in fixing the fees at the time of the hearing of the second account the court was entitled to consider the manner in which the trust estate had bеen managed; also the amount of the allowances theretofore made on settlement of the first account.
For the foregoing reasons it is ordеred that the superior court revise the decree herein appealed from so that it will conform to the views above expressed relating to thе improper allowance of respondent’s claim to interest in the sum of $206.57, and as so revised said decree will stand affirmed. It is further ordered that the respеctive parties pay their own costs of the present appeal.
Ward, J., and Peters, P. J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appеal on November 1, 1939, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 30, 1939.