Protestant Orphan Asylum v. Fankhauser

LANGDON, J.

This is an appeal from an order overruling appellants’ objections to the final account of respondents, executors of the. last will of the decedent Julius Soboslay; and from an order settling the final account and decreeing distribution of the estate.

The decedent died testate, a resident of the city and county of San Francisco, April 22, 1930, leaving estate in California. His will provided for legacies in the sum of $21,000, devised a tract of land to respondents, and left the residue to the appellants, Protestant Orphan Asylum and Protestant College, in Hungary.

Respondents received letters testamentary May 15, 1930. They filed their final account and petition for distribution February 5, 1932, showing a cash balance of $60,846.54 in the estate. On February 17, 1932, the account was settled without objection, and the decree of distribution entered on the same day. Respondents, however, refused to make distribution in accordance with the terms of the decree. It appeared that two of said respondents, Albert Fankhauser and Clara Baldizzone, had previously filed claims against the estate in the aggregate sum of $30,000, which claims had been allowed and paid. But the executors had inadvertently failed to deduct this sum from the amount set forth in their account as available for distribution.

Accordingly, on May 5, 1932', appellants filed notice of motion to vacate the judgment under section 473 of the Code of Civil Procedure, on the ground that it was incomplete, erroneous and inadvertently entered. An affidavit of appellants’ attorney-in-fact accompanied the notice of motion. On the same day respondents likewise filed an affidavit setting forth the above facts. Without waiting for a hearing on the day specified in appellants’ motion, the court on said date of May 5, 1932, made an order setting aside the decree of distribution, and filed an amended decree. Respondents thereafter, on June 3, 1932, filed an amendment to their ac

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coutit, including therein the allowance of the two claims. It then appeared that after payment of inheritance taxes, the balance in the estate was $20,717.20, less than the amount of the cash legacies provided for in the will. As a result, no residue was left for appellants.