Estate of Meyers

WOOD (Parker), J.

Florence Morris and Muriel Meyers, who are daughters of Leo John Meyers, deceased, filed a petition for the removal, and for the suspension of the powers, of Michael S. Berman as administrator of the estate of said deceased. Nathan Morris, the husband of Florence, was nominated by Florence and Muriel as administrator of said estate. Anne Meyers, the surviving wife of said deceased, filed a petition for appointment of herself as administratrix of said estate, in the event Michael is removed as administrator. The petitions were denied “and dismissed.” Florence, Muriel, and Nathan appeal from that order.

Prior to the filing of the present petition, Muriel filed a petition for the removal of Michael as administrator. That petition was granted. On the appeal therein, the order was reversed.

(Estate of Meyers,

130 Cal.App.2d 145 [278 P.2d 471].)

The petition for removal and suspension of the powers of Michael, as administrator, alleges: Michael filed an inventory wherein he listed property of the appraised value of $900; he did not list therein certain separate property of Leo, the apparent title to which was in the names of Leo and Anne as joint tenants, or in the names of Leo, Anne, and Michael as joint tenants; he did not list, in the inventory, property which was acquired with the proceeds of Leo’s separate property; creditors’ claims in the sum of $1,737.12 have been filed and approved, and the amount of approved claims exceeds the appraised value of the property listed in the inventory; Michael either converted to his own use the automobile which was the property of Leo, or he allowed Anne to sell the automobile and to retain the proceeds; at the time of his death, Leo owned certain separate property in addition to grant deeds and other documents and had deposited them in the property listed in the inventory; Leo had signed certain escrow in connection with the contemplated acquisition of a 72-unit apartment building by Leo, Anne, and Michael, as joint tenants; after Leo’s death, Michael and Anne used those deeds and documents to acquire deeds which purported to convey said apartment building to Anne and Michael as joint

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tenants; on September 10, 1952, petitioners (Florence and Muriel) commenced an action against Anne, Michael, and Michael’s wife Audrey, whereby petitioners sought (1) to set aside, on the grounds of fraud and undue influence, the purported conveyances under which Anne, Michael, and Audrey claimed to have acquired title to “said real property,” and (2) to declare a trust, and (3) for an accounting; on the trial of that action the court found that Anne, in order to defraud Leo, Florence, and Muriel, and to get Leo’s separate property for herself and Michael, unduly influenced Leo to execute conveyances and to accept conveyances which purportedly conveyed title to Leo, Anne, and Michael as joint tenants; on November 1, 1955, a judgment was entered in that action setting aside the purported conveyances and adjudging that the properties belong to the heirs of Leo and should be administered in his estate; the judgment also provided that the representative of Leo’s estate should recover from Anne and Michael $66,588.74, subject to administration in Leo’s estate; Anne, Michael, and Audrey appealed from the judgment, and the appeal is pending; Leo’s estate is the beneficiary of the judgment and it is the duty of the administrator to “defend the appeals”; Michael, individually, and Anne and Audrey are judgment debtors and 11 appellants from a judgment” rendered in favor of Leo’s estate, and Michael is disqualified by such conflict of interest from continuing to act as administrator and he should be removed; Michael is incompetent to act as an administrator of an estate having rental income properties; after Leo’s death, Michael collected all rents from said property; he has not kept books of account or formal records of receipts and disbursements of rents and he has permitted original records of rents received to become lost and destroyed; Michael has failed to deposit, in a bank account maintained for that purpose, rentals from the property, and he appropriated “proceeds from the rental” of the property to his own use, although the property was in need of repair, and although trust deed installments were not currently paid and the property was in danger of being lost by foreclosure; Michael did not utilize all the rentals for maintenance of the property or for paying installments on trust deeds.