Fredrickson v. Superior Court

CARTER, J.

This is a proceeding in certiorari to annul an order of the superior court sitting in probate vacating a decree settling the final account of the administratrix, ordering distribution and discharging the administratrix in the estate of Robert E. Maschio, deceased.

Maschio having died intestate, Marie Frederiekson, as guardian of the estate of Esther Maschio, a minor daughter of the deceased, was issued letters of administration. Notice to creditors was duly given. Carew and English, a corporation, in due time and form presented to counsel for the administratrix its verified claim in the sum of $1,071, for the funeral expenses of the deceased. Apparently, the administratrix’ name appears on the claim, but it is agreed that she did not approve it. The probate judge did approve it. It also appears that it was filed with the clerk. No notice of rejection of the claim was given. Counsel for the administratrix testified at the hearing on the motion later discussed herein that his office had sent the claim to decedent’s sisters and he thought they had paid it. The claim has not been paid.

In proper time the administratrix filed her final account and petition for its settlement and distribution of the estate. It was not verified as required by section 922 of the Probate Code, nor did it contain a list of claims filed or presented as required by that section and section 921. In the account it was stated that all the claims had been paid and testimony to the same effect was given at the hearing on the account. On November 29, 1950, the court made its orders settling the account, distributing the estate and discharging the ad

[596]

ministratrix. On May 28, 1951, and within six months of the order of settlement (see Code Civ. Proc., § 473), Carew and English made a motion to vacate those orders, stating as grounds in its notice of motion:

“1. That the . . . account filed herein . . . was not verified, as required by Section 922 of the Probate Code;

“2. That said account does not show all the claims filed or presented against said estate, as required by said Section 922 of the Probate Code;

“3. That Carew & English, Inc., . . . duly presented a claim in the sum of $1,071.00 against the estate of said decedent within the time prescribed by law, and at the place designated in the Notice to Creditors; said claim is on file herein and purports to have been approved by said administratrix, and was allowed by the Court;