Hochwender v. Carter

BARNARD, P. J.

This action was brought pursuant to section 612 of the Probate Code against a prior executor and his bondsman to recover an amount embezzled and fraudulently retained by the former executor, together with the additional amount arising from the doubling provision of that section.

In its decree settling the final account of the prior executor the probate court determined that he was chargeable with $8,069.45, and further found that he had appropriated to his own personal use moneys of the estate to the amount

[436]

of $2,525.38. The latter amount was included in the $8,069.45 with which he was charged, but there was no order or decree charging him with an additional $2,525.38 under the doubling provision of section 612.

This action was begun after the entry of the decree settling the final account in the probate court. A first cause of action sought to recover the amount with which he was charged in the decree settling his final account. That amount was paid and we are not here concerned with the first cause of action.

The second cause of action sought to recover an additional $2,525.38 under the doubling provision of section 612. A demurrer to that cause of action, filed by the prior executor ’s surety, was sustained and the plaintiff has appealed from the judgment of dismissal as to the surety, upon that cause of action.

Three questions are here presented. The first is whether section 612 of the Probate Code was intended to apply to executors and administrators, that is, whether the double liability provided for therein was intended to be imposed upon an executor. This question seems not to have been directly decided on any appeal in this state. However, see

Hill

v.

Superior

Court, 16 Cal. (2d) 527 [106 Pac. (2d) 399], and

Turney

v.

Shattuck,