In Re Estate of Heeney

McLAUGHLIN, J.

Richard Heeney died intestate in 1892, leaving five children who were his only heirs. Of these children, Mary E., died in December, 1896, William in April, 1900, Lulia A., in May, 1901, and Walter in April, 1903. The only survivor, Richard J., is respondent herein, and the husband and child of Lulia A., as her sole heirs, are appellants. William left a widow, but neither Mary nor Walter were ever married. By reason of a tacit understanding or agreement among the heirs, no administration was had upon the father’s estate until March 8, 1901, when letters were issued to the respondent. The only property consisted of the family residence or home, and up to May, 1903, it was used as the residence and home of the family under a mutual agreement between them. From May, 1903, until February,' 1904, the home was occupied by the appellant and his child. When Richard Heeney died, his property was mortgaged for the sum of five hundred dollars, and in 1895, the two adult sons, William and Richard J., paid the mortgage debt and caused the mortgage to be assigned to their sister Mary under an agreement, and pursuant to the advice of their attorney that it should be assigned to the oldest member of the family. Before her death, Mary assigned this mortgage to Lulia, in whose name it now stands of record. Up to the time of William’s death he and respondent also paid all taxes levied upon the property, and after the death of William, the respondent paid all taxes except those levied for 1904, which were paid jointly by respondent and appellant pursuant to an agreement had between them.

[550]

Certain actions to foreclose liens for street work had been pending for some time, and in 1900, respondent employed and paid an attorney to defend these suits and prosecute an action to quiet title brought by the surviving heirs against the Pacific Paving Company, a corporation claiming a lien on the property. The litigation was carried to a successful issue, but certain costs paid by respondent were not recovered by him.

In his final account as administrator of his father’s estate, respondent claimed credit for one-half of all sums paid by himself and William, and the full amount paid by him individually as above mentioned, and also inserted items of credit for interest on the sums so paid. In the report accompanying his account he alleged that all of these payments were made for the benefit of the estate and with the consent of the other heirs. The appellant in his individual and representative capacities filed exceptions to these items in the account and asked that certain expenditures made by him for the benefit of the estate be also allowed.