Estate of Welch

152 Cal.App.2d 225 (1957) Estate of MYRTLE F. WELCH, Deceased. ARTHUR A. FAIRCHILD, as Executor, etc., Appellant,

v.

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Special Administrator, etc., Respondent.

California Court of Appeals.

July 2, 1957. Kenneth M. Liskum for Appellant.

Austin, Austin, Jones & Chaffee and Irving P. Austin for Respondent.

WOOD (Parker), J.

Appeal by Arthur A. Fairchild, executor of the will of Myrtle F. Welch, from an order awarding commission and extraordinary fees to the Bank of America, as special administrator, and awarding ordinary and extraordinary fees to the bank's attorneys.

On August 6, 1952, the bank was appointed special administrator, with general powers, of the estate of Myrtle F. Welch. On September 7, 1954, Arthur A. Fairchild was appointed executor of her will. On October 21, 1954, the bank filed its first and final account as special administrator, and listed therein disbursements for funeral expenses and an autopsy in the total amount of $599.28. The executor objected to the account on the grounds, among others, that personal property had not been itemized in the inventory, and that certain personal property was missing. No objection was made to the [227] amounts paid for the funeral or the autopsy. The court found, with reference to the account, that the bank as special administrator had accounted for all assets received by it; that the bank exercised due care in the collection and preservation of the assets; that it is not true that the bank "received any property belonging to the estate or which is not accounted in said account." It was also stated in the findings that no request was made for commission of the special administrator or for fees of its attorneys, and "no finding as to the amount of such commission or fees is made, but is reserved to the time of the Final Accounting." On December 10, 1954, an order was made approving the account. No appeal was taken from the order. On June 21, 1955, the bank was discharged as special administrator.

On March 26, 1956, the bank filed a petition for apportionment of commission and for extraordinary fees as special administrator, and for apportionment of ordinary fees and for extraordinary fees for its attorneys. The executor objected to the petition on the grounds, among others, that the bank had paid $599.28 for funeral expenses and an autopsy, contrary to the instructions of decedent that the cost of her funeral should not exceed $100, and that the instructions were known to the bank's attorneys prior to the time of payment; that the bank, as special administrator, had received certain personal property of decedent of the value of $1,530 and had failed to itemize the property in the inventory, to safeguard the property, and to turn it over to the executor; and that said property was missing.