Exterstein v. Higgins

THOMPSON, J.

This is an appeal from an order vacating an order denying a petition by a creditor to remove an executrix because she failed to account for all the property of the estate, and allowing a motion to reset the cause for hearing. That part of the order vacating the former order was on the court’s own motion, and the remainder was in reference to respondent’s motion.

On December 12, 1929, Claude G-. Higgins, a creditor, filed a petition for the removal of Pearl Exterstein as executrix of the estate of Herman J. Exterstein, her husband, for failing to include in her inventory and account moneys received by her on two policies on the life of the deceased, Pearl V. Exterstein being named as beneficiery in the policies. Petitioner alleged that he was a creditor of the estate whose claim had been established by judgment against the estate; that the premiums on the policies were paid by Exterstein out of the community property at a time when he was insolvent and that Pearl Exterstein gave no consideration therefor but that the policies were obtained in furtherance of a plan or arrangement entered into by the Extersteins with the purpose of hindering, delaying and defrauding their creditors, and, in particular, the petitioner.

The executrix answered, putting in issue the insolvency of Exterstein at the time of the issuance of the policies, the existence of any plan, arrangement or intent to defraud creditors and the payment of consideration by herself, and alleging that she did not include the proceeds of the policies in the inventory and account of the property of the estate for the reason that they did not constitute assets of the estate, but were received by her for her own use and benefit. The matter was heard in the superior court and, on September 12, 1931, the following minute order was made: “Peti

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lion to remove Executrix and to order paid into the estate moneys received from life insurance upon deceased payable to Pearl Y. Exterstein, the widow, is denied. This Order is made after Findings by the court that the premiums for such life insurance policies were paid out of the community funds by Herman J. Exterstein while he knew himself to be insolvent but not with fraudulent intent either of himself or Mrs. Exterstein.”

On January 23, 1933, contending that the above order was without effect, the respondent moved in the superior court for an order setting for hearing his petition for the removal of appellant as executrix and to order the insurance money paid into the estate. The motion was made upon the ground that no findings of fact or conclusions of law or judgment which constituted the decision of the court had been entered, and the judge who heard the petition was no longer acting judge of the court in which the matter was heard. The motion was granted and the order of September 12, 1931, was, as heretofore stated, on the court’s own motion, set aside because of inadvertence.