Giavocchini v. Bank of America National Trust & Savings Ass'n

PULLEN, P. J.

The three minors herein were beneficiaries under the will of their deceased father, Albert Lawrence

[445]

Giavocchini. The will was admitted to probate in the county of Orange, where these minors, through their guardian, had appeared and filed objections to the second current account of the executor, the defendant herein, Bank of America. After a hearing, the court allowed the account and denied the objections.

Thereafter these same minors by their guardian, filed an action in the county of Los Angeles, charging as they had in their objections to the approval of the account before the probate court in Orange County, that Bank of America, as executor, had in 1929, obtained an order to sell certain stocks belonging to the estate of the deceased father, but through the negligent and careless management of the estate this personal property was not sold until 1931, and in the interval between 1929 and 1931 the market value of the accounts had fallen, resulting in a loss of over $10,000 to the estate. They also charged other acts of irregularity and mismanagement, and prayed for judgment against the defendant bank.

Defendant bank answered this complaint denying the several allegations and set up the objection to the account filed by the minors in the probate court in Orange County, and the order of the court overruling the objections, and averred that plaintiffs were estopped from proceeding in the action for damages by reason of such judgment in Orange County, and that that judgment was

res judicata.

After a hearing thereon the Superior Court in Los Angeles County found in favor of defendant bank, and held that plaintiffs were estopped from maintaining this action. Prom that judgment this appeal is taken.

Appellants claim they are persons under disability within the meaning of section 931 of the Probate Code, and entitled to be heard.

Section 931 of the Probate Code provides:

“The order settling and allowing the account, when it becomes final, is conclusive against all persons interested in the estate, saving, however, to persons under disability,. the right to move for cause to re-open and examine the account, or to proceed by action against the executor or Administrator or his sureties, at any time before final distribution; and in any such action such order is