Estate of Werfel

California Court of Appeal Feb 18, 1953 No. Civ. No. 19153Published

Before: Doran

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Holding. The court held that an executrix cannot be surcharged for family allowance payments made in good faith pursuant to a valid, final court order, even if the estate is later determined to be insolvent or tax claims are subsequently filed.

Issues

Whether the United States and the State of California are bound by final probate court orders entered before they became parties to the proceedings.
Whether an executrix may be surcharged for family allowance payments made in compliance with a valid, subsisting court order.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The Probate Court cannot order the executrix to pay and then surcharge her for obeying. It cannot entrap the executrix because of her obedience.”

“The probate court clearly exceeded its authority when it sought to modify previous orders and require the executrix to repay monies theretofor paid under and by virtue of such previous orders.”

116 Cal.App.2d 167 (1953) Estate of FRANZ WERFEL, Deceased. ALMA MARIA MAHLER WERFEL, Petitioner and Appellant,

STATE OF CALIFORNIA FRANCHISE TAX BOARD et al., Contestants and Appellants.

Civ. No. 19153. California Court of Appeals. Second Dist., Div. One.

Feb. 18, 1953. George I. Devor, Krystal & Paradise and Stuart S. Hillman for Petitioner and Appellant.

Edmund G. Brown, Attorney General, James E. Sabine, and Edward Sumner, Deputy Attorneys General, H. Brian Holland, Assistant Attorney General, Ellis N. Slack, Robert [168] N. Anderson and John J. Kelley, Jr., Special Assistants to the Attorney General, Walter S. Binns, United States Attorney, E. H. Mitchell and Edward R. McHale, Assistant United States Attorneys, and Frank W. Mahoney for Contestants and Appellants.

DORAN, J.

The facts relating to the within appeal are as follows. Decedent died August 26, 1945. The will was admitted to probate September 28, 1945, and letters testamentary issued to decedent's widow Alma Werfel on October 3, 1945.

Appellant Werfel's brief recites that "On October 17, 1945, the trial court made an order authorizing a family allowance of $1,000.00 per month to be paid to the widow of the decedent for period not to exceed six months from the date of his death. No appeal was ever taken from said order. It became final by the lapse of time. Complying with said order of October 17, 1945, the executrix paid the widow the six monthly payments of $1,000.00 each, which payments were approved in the Order Settling First Account Current and Report of Executrix."

"On October 28, 1946, the court below made an order authorizing the executrix to pay to the widow $1,500.00 per month beginning from the date of the last payment made under the order of October 17, 1945, and ending upon further order of the court. This order was never appealed from and became final by lapse of time. Thereafter on September 1, 1946, the executrix filed her Second Account Current which reflected the payment of family allowance by the executrix to the widow in the amount of $21,000.00. These payments were for the period beginning February 25, 1946, and ending April 25, 1947. An order was made on May 28, 1948, approving said Second Account Current and the family allowance payments enumerated therein."

Estate of Werfel

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DORAN, J.

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