Sontag v. Superior Court

WILLIS, J.,

pro

tem.

An alternative writ of prohibition was issued herein, prohibiting the Superior Court in and for Los Angeles County from taking further proceedings based upon the account of petitioner as former executor of an estate of a decedent until further order of this court. An answer has been filed by respondent, and to that petitioner has filed a demurrer. Both parties having submitted their authorities and presented their views in oral argument, the matter stands submitted.

On July 28, 1932, petitioner resigned as executor of the last will and testament of Clara Louise Maitland, deceased, whose estate was in process of administration in the Long-Beach department of the superior court, sitting in probate. Western Trust and Savings Bank was on the same date appointed administrator with the will annexed of said estate. After his resignation petitioner filed his final account as executor, to which the new administrator filed written objections, comprising twenty-five items, and the hearing on the

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account and objections came on regularly on September 19, 1932, upon the conclusion and submission of which, the court on the same date made its order settling the account. Before the making and entry of the order a stipulation between petitioner and the administrator was filed, providing among other things not pertinent herein that the court may settle the account and order transfer of property therein described to the administrator “without prejudice to any action said administrator with the will annexed, or anyone else interested in said estate, may hereafter bring against said M. Burnett Sontag, former executor”, for (a) failure to include in the inventory a certain contract or mortgage of $3,500 covering property owned by Edna Brown, or for $3,500 held by him at the time of decedent’s death and understood by decedent to have been in the form of a mortgage on property owned by Edna Brown; (b) for damages that the estate may have suffered by reason of his having substituted in place of parcel 1, as described in the inventory, the real property described as lot 12 in block 7 of Long Beach Heights, Long Beach, California; and (c) for damage sustained by the estate by his substituting in place of parcel 5 as described in the inventory the real property described as lots 33 and 34 in block “B” of Wetherby tract in Long Beach, California. The order, based on the evidence and this stipulation, entered September 19, 1932, decreed that the account of petitioner, as former executor, be allowed and settled as thereinafter provided, “without prejudice to any action said Western Trust and Savings Bank of Long Beach, as administrator with the will annexed, or any persons interested in said estate, may bring against said petitioner” by reason of any of the matters stated in paragraphs (a), (b) and (c) above, therein reciting the substance of the stipulation as written .and filed.