75 P. 679 | Cal. | 1904
This is an appeal by certain creditors of the estate of Thomas Bell, deceased, from the order of court settling the final account of the special administratrix of the estate. The attack upon the account goes to the allowance to the special administratrix of payments amounting to over twenty thousand dollars, made to herself as widow of the deceased upon account of family allowance.
Upon January 12, 1893, and before the return of the inventory in the matter of the estate of the deceased, the court made its order directing that the sum of two thousand dollars per month should be paid to Teresa Bell, the widow, from the date of the decedent's death "until further order of the court." The inventory was returned upon June 17, 1893. On October 14, 1895, the court made its second order "modifying" the order of 1893, and directing the executors to pay the widow on and after that date "as family allowance the sum of fifteen hundred dollars per month, instead of the monthly allowance of two thousand dollars theretofore ordered to be paid." Later the court made its third order, providing that on and after the sixteenth day of May, 1898, the sum of one hundred dollars a month should be paid for family allowance. All of the family allowance accruing under the last two orders has admittedly been paid. The moneys in controversy are payments made under the first order, sums asserted to have *100 accrued between the date of the return of the inventory and that of the order of 1895.
Upon the authority of In re Lux,
It is contended, however, that certain considerations take this case out of the operation of the rule above laid down. Those considerations are: 1. That from the time of the return of the inventory until the date of the making of the second order the executors continued to make payments as and on account of family allowance; that those payments were duly entered in their accounts and settled by the court; that they were based upon the belief of the executors and of the court that the preliminary order for family allowance was still in effect; 2. That in its order for family allowance made in 1895 the court in terms "modified" the order of 1893, and directed the payment of fifteen hundred dollars a month "instead of the monthly allowance of two thousand dollars theretofore ordered to be paid," and that this was sufficient recognition of the continued existence of the previous order, and was sufficient authority in and of itself to authorize the payments here contested; and 3. That certain exparte orders of the court in the nature of drafts upon the California Safe Deposit and Trust Company (the custodian of the funds of the estate) authorizing the depositary to pay certain sums to Teresa Bell, the widow, "for and on account of family allowance" were sufficient to justify and validate the payments here in controversy.
As to the first of these considerations it need but be said that the payments so made by the executors, charged in their accounts and allowed by the court, are not, upon this appeal, open to attack by the creditors, nor, indeed, are they attacked. But the fact that both the executors and the court mistakenly believed that there was an order for family allowance under which these payments were properly made did not and could not operate to revive the order of 1893, which had become a *101 nullity upon the return of the inventory. The creditors are not complaining of the payments made in the past and charged and settled in the executor's account, since the validity of those payments, by lapse of time and failure to appeal, is no longer open to question, but they may be heard on appeal as to payments subsequently made, and now for the first time presented to the court in probate for its consideration.
The same may be said as to the second proposition, the recognition in the order of 1895 of the continued existence of a family allowance under the order of 1893. The order of 1895 is an order independent of the order of 1893 (Estate of Bell,
The fact that certain creditors of the estate themselves entertained the mistaken belief that the order of 1893 continued in force cannot operate to estop the contesting creditors who here appeal.
One other matter demands consideration. In the third annual account, as settled, a certain amount was allowed upon *102 account of family allowance. This allowance, and the whole acount, has become final from lapse of time and failure to appeal. Upon the hearing of the present account respondent was permitted to introduce vouchers to show that of the amount so allowed some twelve thousand dollars was expended, not in fact for family allowance, but to pay certain claims and assessments against properties of the estate, and the effect contended for by respondent is, upon the theory of the continued validity of the order of 1893, that there is some twelve thousand dollars more due her upon account of unpaid family allowance under that order. The determination heretofore reached and expressed, that the order of 1893 ceased to be operative upon the return of the inventory, disposes of all questions of unpaid amounts arising under that order, but it is proper to add that the items having been allowed and settled as and for a family allowance, and the account itself having become at the expiration of the time for appeal a final adjustment and adjudication of the matters between the parties in interest, it was improper to admit any evidence tending to impeach the verity of the account as settled.
The order appealed from is reversed, with directions to the trial court to settle the final account of the special administratrix by disallowing any and all items for payment of family allowance under the order of 1893.
McFarland, J., and Lorigan, J., concurred.
Hearing in Bank denied.