McLellan v. De Gear

KNIGHT, J.

This is an appeal by the trustees of a testamentary trust created by the will of Mary Belle McLellan, deceased, from portions of a decree settling their second account. The contest thereto was instituted by respondent, who is the beneficiary of the trust and sister to the trustees. The subject-matter of the appeal involves three rulings of the superior court, first, in charging the trustees with interest amounting to $206.57; secondly, in disallowing as a credit a sum of money expended by the trustees in taking and prosecuting an appeal from the decree settling their first account; and third, in fixing the amount of compensation to be paid to the trustees and their attorneys.

The dispute about the item of interest arose out of these facts: In conformity with directions given by the Supreme Court in its judgment of reversal on the previous appeal

(Estate of McLellan, 8

Cal. (2d) 49 [63 Pac. (2d) 1120]) the superior court on January 29, 1937, entered a new decree wherein it was “ordered, adjudged and decreed” that there was due respondent from said trustees “as of, and on, June 7th, 1935, the date of said first account, the sum of $1703.08 as income of said trust estate”, that the trustees be charged therewith, and that they pay the same to respondent. However, there was a miscalculation in computing the amount adjudged to be due, and on February 25, 1937, the superior

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court made an order pursuant to the written stipulation and request of the respective parties amending the decree by reducing the amount of $1703.08 to $1666. No provision was made in the decree as reentered or as amended requiring the payment of interest on the amount so adjudged to be due respondent; and on February 26, 1937, the day following the filing of the order amending said decree, the trustees paid to her the said sum of $1666, the amount called for by said decree. Thereupon respondent delivered to the trustees a “Receipt and Satisfaction” signed by her and her attorney, reading as follows: “In the Superior Court of the State of California, in and for the County of San Mateo. In the Matter of the Estate of Mary Belle McLellan, also known as M. Belle McLellan, Deceased. Number 4122. Department Number 2. Receipt and Satisfaction. The undersigned, Mary Grace De Gear, hereby acknowledges that Asa D. Mc-Lellan and Frank L. McLellan, Trustees, have paid to her the sum of $1,666.00 decreed to be due to her as of, and on, June 7th, 1935, by decree settling first account of trustees of trust for benefit of Mary Grace De Gear, et al., as said decree was amended by stipulation dated February 23rd, 1937,