75 Cal. App. 2d 308 | Cal. Ct. App. | 1946
By his will the decedent herein left his entire estate, with the exception of an oil royalty, to three children, Alice Thee Richardson, contestant (hereinafter referred to as appellant), Earl J. Thee and Lloyd H. Thee, in equal shares. Lloyd H. Thee was appointed executor. Lloyd H. Thee and Earl J. Thee each filed a claim against the estate for personal services rendered during the lifetime of the decedent in the sum of $1,000. Another daughter, Huida Thee Wopschall, filed a claim for $500, likewise for personal services rendered during the lifetime of decedent. Said claims were allowed by the executor and approved by the court. Upon the filing of the executor’s first and final account, appellant presented objections to the claims upon the grounds that they were based upon false allegations; that the personal services therein set forth were never rendered; and that decedent never agreed to pay for such services. After a hearing, the objections were overruled. From that portion of the order settling the executor’s account which approved the payment of the claims this appeal is prosecuted.
Respondent, Lloyd H. Thee, in his capacity as executor, filed a notice of appeal from “the denial of the executor’s motion to strike the motion for a new trial from the files,” but such appeal has been abandoned.
Appellant’s sole ground for a reversal of the judgment is that the claimants being related to the decedent by close ties of blood, the presumption that where one accepts services from another and receives the benefit of the work there is an implied promise to pay the reasonable value of such services was not available to them. (Collier v. Landram, 67 Cal.App.2d 752, 757 [155 P.2d 652]; Nember t v. McCarthy, 190 Cal. 723, 725 [214 P. 442].) However, the cases just cited involved actions to establish the validity of claims which had been rejected by the executor and were not approved by the court. Obviously, in such an action the burden rested upon the claimants to establish the validity of the claims by a preponderance of the evidence. In the case at bar, however, the challenged claims were allowed by the executor and after a hearing thereon, a transcript of which hearing is now before us, were by the court ordered paid out of the assets of the estate in the course of administration.
At the hearing on the objections to the first and final account, the evidence presented by appellant was through another sister, Martha Wopschall, who testified that decedent said that he paid the claimant Huida Wopschall, but that she did not know what services, if any, the claimant Earl J. Thee had rendered. She testified to a conversation with claimant Lloyd H. Thee at the time of the hearing on the petition for probate of the will, in which the witness said to Mr. Thee, “Don’t you think you are asking a lot, $1,000, for your services to Dad?” to which he replied, “I can’t see why.” Amplifying this conversation, the witness testified that Lloyd H. Thee said, “Earl and I are both going to put in the sum of $1,000 for Earl having a doctor bill and I for the different things I have done.” The witness said, “Lloyd, don’t you think that is a little bit high? We are willing that you should be paid, but I think you are high.” To this Lloyd Thee replied, “That is what it is.” Whatever intrinsic value be accorded this evidence, it at the most served only to raise a factual conflict which the court by its decision resolved against .appellant.
After presenting the foregoing evidence, counsel for appel
The claimants having met the burden cast upon them by reason of their relationship with the testator, and appellant having failed to meet the burden of proof resting upon her, a contestant of an approved claim, the decision arrived at by the probate court cannot be disturbed.
The appeal of Lloyd Herman Thee as executor from the order denying his motion to “strike the motion for a new trial from the files” is dismissed. The order and portions thereof from which this appeal was taken by contestant, Alice Thee Richardson, are and each is, affirmed.
York, P. J., and Doran, J., concurred.