Mountanos v. Woodman

VAN DYKE, P. J.

This is an appeal from an order settling appellant’s first and final account as executor of the will of George Harris Petro, deceased.

Upon appellant’s petition there was admitted to probate a copy of an allegedly lost will of the deceased under which appellant was the beneficiary of one-half of the estate and was bequeathed the other one-half in trust for the benefit of charitable institutions devoted exclusively to educational purposes, which beneficiaries were to be selected by appellant. Thereafter revocation of the probate of the will was sought by the respondents who claimed to be the half-brother and the half-sisters of the decedent. After trial the court found that the decedent had destroyed his last will with intent to effect a revocation thereof and that respondents were his only heirs at law and were entitled to succeed to his entire estate. In accordance with such findings the court entered an order revoking probate of the will and awarding respondents their costs against appellant. No appeal was taken from that order and it has become final. Thereafter appellant filed his account, claiming credit therein not only for the ordinary costs of administration incurred by him as executor, but also for costs, and attorneys’ fees incurred and commissions earned in defending against respondents’ successful contest. He also sought credit for the sum of $500 which he had advanced to the Temple Beth Jacob, a charitable organization which he had selected as a beneficiary. The court disallowed these items in the settlement of his account upon the grounds that, as to the contest, he had acted in his own interest and in bad faith in opposing the contest, and, as to his advance to the Temple Beth Jacob, that institution was not devoted exclusively to educational purposes. Herein appellant assigns as error only the disallowance of costs, attorneys’ fees, and commissions.

[707]

The appeal is presented upon a judgment roll and a settled statement. The statement declares that: “By stipulation all exhibits and documents in this file, including pleadings, opinions, findings and orders as of the date of hearing [of the account] were deemed before the court as additional evidence upon which the court could decide the issues then being heard. ’ ’ The statement relates that decedent, an elderly gentleman of about 80 years of age, became acquainted with appellant at Menlo Park, California, in the year 1950; that they both attended religious services at Temple Beth Jacob; that decedent’s will was executed and that appellant, in accordance with decedent’s directions, placed the executed will in a sealed “Will envelope” and delivered it to decedent, retaining an unconformed carbon copy; that shortly after decedent’s death the public administrator of Sacramento County examined the contents of a safety deposit box and found therein papers bearing the name and address of appellant; that the public administrator thereupon contacted appellant, asking about a will and was informed by appellant that one had been prepared and that he had a unconformed copy thereof. Although it is apparent that the settled statement is unusual and unsatisfactory we will assume that we may, as the parties invite us to do, consider those documents referred to in the opening paragraph of the statement in resolving the issues on the appeal.