Estate of Reichel

[158]

Opinion

KANE, J.

A single issue, but one of first impression, is presented by this appeal from a portion of an order settling an executor’s account and report.

The Facts

Curt R. Reichel died on or about April 11, 1969. The devisees and legatees named in his will are his wife (appellant herein) and his daughter. On June 16, 1970 several specific legacies including (1) $10,000 in cash and (2) his family residence were distributed to appellant by a judgment of preliminary distribution. In making distribution of this property, the respondent executor deducted from the $10,000 bequest, among other things, two installments of real estate taxes levied upon the real property and an insurance premium for coverages relating to the real property. The reason given for the deductions was that the appellant wife had from the date of death of her husband occupied the real property as her principal residence rent free.

Appellant filed a contest and exceptions to respondent’s first account and report and petition for settlement thereof on the ground that the taxes and insurance premium paid by the respondent on the real property constitute expenses of administration and must be charged against the residue of the estate pursuant to the provisions of section 750 of the Probate Code. The issue thus framed, simply stated, is;

Where specifically devised real property produces no income but is occupied rent free by the devisee from the date of death of testator until its distribution, are real property taxes and other expenses attributable to the property chargeable to the devisee?

Answering this inquiry in the affirmative the learned trial judge, relying upon

Estate of Bixby

(1956) 140 Cal.App.2d 326 [295 P.2d 68], rejected the contest and approved the executor’s accounting. We agree and accordingly affirm.

The Law

The fundamental principle which must govern our resolution of the issue is stated by the