Estate of Pierce

PULLEN, P. J.

Walter V. Pierce died leaving a will naming L. B. Pierce, a brother, as executor, wherein he devised and bequeathed all of his estate, except two minor bequests, to Walter Phylipps Pierce, an adopted son, and his five brothers.

During the course of the probate proceedings Walter Phylipps Pierce, the adopted son, disappeared and was never located, and in the matter of Walter Phylipps Pierce, a missing person, L. B. Pierce was appointed trustee. Walter Phylipps Pierce had became indebted in a considerable sum and a creditor began suit against him and recovered a judgment for approximately $800. In due course, execution was issued upon the judgment against Walter Phylipps Pierce,

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and was levied upon his interest in the estate of Walter V. Pierce, deceased. In the meantime it appearing that Walter Phylipps Pierce could not be present to satisfy the judgment or to purchase the property at the execution sale, and that the interest of the missing heir was about to pass into the hands of a stranger to the estate, a petition was filed by L. B. Pierce, the executor, for authority to invest funds of the estate. The petition recited that some two or three years prior thereto Walter Phylipps Pierce disappeared and had not since been located or heard from; that the sheriff of Sacramento County was about to sell at public auction the interest of Walter Phylipps Pierce to satisfy a certain judgment and asked the court to authorize the executor in behalf of the estate to expend funds of the estate, not to exceed $800, in the purchase of the interest of Walter Phylipps Pierce. All of the heirs, legatees and devisees except Walter Phylipps Pierce, the missing heir, consented to the making of the order. Accordingly the order was made authorizing the executor to expend not ifiore than $800 from the funds of the estate to purchase at execution sale the interest of Walter Phylipps Pierce in the estate.

Thereafter, in December, 1934, an order was made settling and approving the second account and report of the executor, which account showed a disbursement of $808.77 paid the sheriff at the execution sale, and in the report was a recital of the transaction as above set forth, which account and report was settled and approved by the probate court.

Thereafter the estate continued in the usual course until October 14, 1936, at which time the executor filed his petition for final distribution. After due notice, the court made its order for final distribution, setting over to the missing heir 1/36 of the residue of the estate and the remainder in equal proportions to the five surviving brothers.