McCarthy v. Schwerin

MARKS, J.

This is an appeal by Francis C. McCarthy, son of Charles F. McCarthy, deceased, from an order settling the final account of the executrix of the last will and testament of Charles F. McCarthy, deceased, and from the decree of final distribution. Appellant has attempted to appeal from an order denying his motion for new trial. Such an order is not appealable. (Sec. 1240, Prob. Code.) Mayzellia Ann Thompson McCarthy has attempted to appear in this appeal. Francis C. McCarthy is the only appellant named in the notice of appeal. Mrs. McCarthy has no interest in the estate nor in its property.

(McCarthy

v.

McCarthy,

23 Cal. App. (2d) 151 [72 Pac. (2d) 255];

Estate of McCarthy,

23 Cal. App. (2d) 389 [73 Pac. (2d) 910];

Estate of McCarthy,

23 Cal. App. (2d) 395 [73 Pac. (2d) 913] ;

Estate of McCarthy,

23 Cal. App. (2d) 398 [73 Pac. (2d) 914].)

We have disregarded the glaring deficiencies in appellant’s briefs and have carefully studied the entire record. With a single exception we have found nothing that requires any comment here. With that exception the evidence supports the findings and the findings support the order and decree.

Under date of December 23, 1937, Kate A. Schwerin, Charlotte M. Morrow and Francis C. McCarthy, the legatees named in the will of deceased, entered into a contract settling pending litigation and agreeing to give Francis C. McCarthy certain property and money from the estate as his distributive share thereof and in settlement of the litigation and in full payment of his interest in the estate. This contract required him to pay the inheritance tax on his portion of the estate property. Mayzellia Ann Thompson McCarthy joined in this agreement and was paid $500 by Kate A. Schwerin and Charlotte M. Morrow for relinquishing all claims she might have had on the estate and its property and for joining Francis C. McCarthy in a quitclaim deed to certain real property. Francis C. McCarthy was paid $2,500 for executing this deed.

Under date of December 24, 1937, a decree of partial distribution was rendered. It distributed to Francis C. McCarthy, without condition or reservation, the property set