Estate of Wear

20 Cal.2d 124 (1942) Estate of KATIE RICHARDS WEAR, Deceased. THEODORE J. MILLER et al., Respondents,

v.

EDWARD ROLKIN, as Executor, etc., Proponent; ARLINE M. ROLKIN, as Executrix, etc., et al. (Substituted Proponents), Appellants.

S. F. No. 16301. Supreme Court of California. In Bank.

Apr. 2, 1942. Frank J. Mahoney for Appellants.

James M. Hanley and Herbert Chamberlin for Respondents.

TRAYNOR, J.

Mrs. Katie Richards Wear owned certain real property in Sonoma County encumbered by deeds of trust securing promissory notes for $27,800 and by a mortgage securing a note for $3,525. In 1920 she entered into a written contract with Edward Rolkin providing that he would advance the money to purchase these notes and the instruments securing them; that she would sell her property in Sonoma County and apply the money received from the sales in payment of the notes to him; that upon payment of the notes he would receive 25% of all additional proceeds from the sale of the lands, and that she would convey a one-fourth undivided interest to him in any lands that might remain unsold after six years. Pursuant to the agreement, Rolkin purchased the notes and the instruments securing them. In 1922, Mrs. Wear sold certain property in Sonoma County to Thomas H. Corcoran and his wife for $49,000. The purchasers paid $9,000 down and gave a note of $40,000 for the balance, secured by a mortgage and deed of trust. The note, mortgage, and deed [126] of trust were made out and delivered to Rolkin. He in turn executed and delivered to Mrs. Wear a declaration of trust, subsequently recorded, that he held them only as security for the money owed to him by Mrs. Wear. In 1927, according to Rolkin, he entered into an oral agreement with Mrs. Wear whereby she assigned to him a portion of the balance due on the Corcoran note in payment of her indebtedness, and from that time, with her consent, he gave her credit for only her portion of the payments on the note.

Mrs. Wear died in 1930. Her will named Rolkin as executor, and pending a contest of the will, he was appointed special administrator. When the will was admitted to probate in 1932 he was appointed executor. In his final account as special administrator he reported receipts of $5,212.78, disbursements of $2,768.35, and cash on hand of $2,829.43. He also reported that the estate had an interest in the promissory note of Thomas Henry Corcoran and Emily C. Corcoran payable to Edward Rolkin for $40,000; that at the time of decedent's death this note had been reduced by payments on the principal to $26,000, of which $11,954.39 represented decedent's share; and that $3,220 belonging to the estate had been collected since her death. Only the estate's proportionate share of the payments on the note was reported under the purported oral agreement of 1927. All payments from other sources were reported in full. Following a hearing at which respondents Theodore Miller and Harry Miller were represented by one of the attorneys now appearing for them, the probate court found the account to be a full and correct accounting of all money received by Rolkin as special administrator, and of all property of the estate that had come into his possession. It entered a decree approving and settling the account as rendered and ordered that the residue of the estate, remaining in the hands of the special administrator after the payment of fees amounting to $1,300, be distributed to Edward Rolkin, executor. No appeal was taken from the decree.