Off v. Russell

YORK, J.

At the time of her death on April 1, 1934, Clara Maude Reynolds owned 300 shares of corporate stock held by respondent Russell, Miller & Co., stockbrokers, as security for her indebtedness to them in connection with a margin account in her name. On April 8, 1934, special letters of administration issued to appellant Off, which letters provided that “Edward T. Off is hereby appointed special administrator of the Estate of Clara Maude Reynolds, deceased, with powers as follows: . . . and may sell such

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perishable property as the court may order to be sold, and particularly to collect or close out the margin account said deceased had with Russell, Miller & Company”. On the date of their issue, appellant delivered a certified copy of said special letters of administration to respondent company, stating that he desired to sell the stock held in the margin account of deceased, which account upon that date was properly margined. Respondent company declined to accept such order of the special administrator and said special letters as its authority to sell the stock, and requested appellant to furnish an order of court pursuant to provisions of section 771 of the Probate Code authorizing such sale. Thereafter, the account was sold out by respondent company under the margin account agreement executed by deceased in her lifetime, with the exception of 29 shares of National Distillers, leaving a credit of $59 in said account. Meanwhile, appellant had qualified as executor of the last will and testament of said deceased, and on April 19, 1935, brought action against respondent company seeking to recover the sum of $2,785.67, which is the difference between the amount owing to respondents on the margin account and the price of the stock quoted on the date on which appellant presented his special letters of administration with the request to sell the stock held by respondent company. Prom a judgment entered in favor of respondents, appellant presents this appeal.

This court is asked to decide whether or not the order of the special administrator and, by reason of the wording thereof, the special letters of administration, constituted an order authorizing the sale of the stock, and in such decision to determine whether the nonsale of the stock on April 9, 1934, was wrongful.

Under certain circumstances a special administrator may be appointed “to take possession of the estate of the decedent and to exercise such other powers as may be necessary for the preservation of the estate” (sec. 460 of the Probate Code); whereupon the special administrator “must take possession of all of the real and personal property of the decedent, and preserve it from damage, waste and injury, and must collect all claims, rents and other income belonging to the estate; and for such purpose may commence and maintain or defend suits and other legal proceedings as such administrator. Ho may sell perishable property and exercise