In Re Newell

California Court of Appeal Feb 15, 1912 No. Civ. No. 904.Published

Before: BURNETT, J. —

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Holding. The court held that the trial court did not abuse its discretion in removing an executor who committed fraud against the estate by allowing a claim he personally created to satisfy his own debt.

Issues

Whether the executor's actions in creating and allowing a fraudulent claim against the estate constituted sufficient grounds for removal under the Code of Civil Procedure.
Whether the trial court abused its discretion in removing the executor.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court concluded that the allowance of this claim, under the foregoing circumstances, by the executor was a fraud upon the estate and the order of removal followed.”

“An executor should be removed when he has committed, or is about to commit, a fraud upon the estate.”

“The findings that we have quoted and the evidence supporting them present an unusual situation involving such circumstances of suspicion and discredit as to render it impossible for us to say that the court below abused its discretion.”

The appeal is from an order and judgment of removal of the executor. Several charges of misconduct were specified in the petition. The one which the court made the basis for its order is embraced in the following findings:

"That prior to the year 1895, Sidney W. Newell was a member of the firm of Eaton, Newell Buckley, and prior to the year 1895, the above-named firm borrowed from Miss A. M. Upstone, who at said time was, and ever since has been, and now is, a sister in law of Sidney W. Newell, the sum of $3,000, and upon the dissolution of the above-named firm, in the year 1894 or 1895, it was agreed that said Sidney W. Newell should pay the said Miss A. M. Upstone the aforesaid sum of $3,000.

"That said Sidney W. Newell, and his father, Sidney Newell, executed a note in favor of said Miss A. M. Upstone for said sum of $3,000, together with interest from date of *Page 260 said note, and said note remained in the possession of Sidney W. Newell, who at said time was attending to and from said time continued to attend to and manage all the business of Miss A. M. Upstone, and he continued to attend to all the business of Miss A. M. Upstone since said time and up to the present.

"That said note was never paid, and the same became outlawed, and the said Miss A. M. Upstone never demanded payment of said note from Sidney Newell (now deceased), or from the said Sidney W. Newell, and the said Sidney W. Newell destroyed said note.

"That in the year 1886, Sidney Newell (now deceased) executed and delivered to Sidney W. Newell a certain power of attorney, which power of attorney is general in its form and substance. . . .

"That said power of attorney nowhere and in no place authorizes the indorsement of a promissory note.

"That said power of attorney remained in one of the boxes in the vault of Stockton Savings Bank, and it was never recorded.

"That on the thirty-first day of August, 1909, and for some time prior thereto, Sidney Newell, now deceased, was sick and ill, and he died on the twenty-fifth day of November, 1909.

"That on the thirty-first day of August, 1909, at and in the city and county of San Francisco, Sidney W. Newell made and executed his certain promissory note in writing, in favor of his father, Sidney Newell, for the sum and amount of $7,561. . . . And thereupon, the said Sidney W. Newell indorsed said note as follows: 'Pay to the order of Miss A. M. Upstone; Sidney Newell by S.W. Newell, his attorney in fact, for value received. Demand and notice of nonpayment are hereby waived this 31st day of August, 1909. Sidney Newell by S.W. Newell, his attorney in fact.'

In Re Newell

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