Wirringer v. Morgan

[27]

HALL, J.

This is an appeal from a judgment in favor of plaintiffs and the order denying defendant’s motion for a new trial.

The action was brought to recover a sum of money under a decree of distribution entered in the superior court of Santa Cruz county in the estate of one Sebastian Holzfurtner, deceased. The order settling the final account and decree of distribution are contained in one order or decree, which is attached to and made a part of the complaint; and the solution of the controversy in this ease depends upon the effect to be given to this decree.

It appears from the decree that said decedent died intestate on the twenty-eighth day of April, 1899, a resident of Santa Cruz county; that he was never married, but left surviving two children of him born out of wedlock, the plaintiffs herein. That before his death he in writing, signed in the presence of at least two competent witnesses, acknowledged himself to be the father of said plaintiffs herein. That he left no other children surviving him, and that the plaintiffs herein were his only heirs at law. The court accordingly distributed the residue of said estate in equal shares to the plaintiffs herein.

In that part of the decree settling the final account the court, after making an allowance for attorneys’ fees, reporter’s fee and estimated expenses of closing the estate, found the residue of money in the hands of the administrator (defendant herein) to be “$5,927.22, less the amount of the inheritance tax as required by law, which is hereby ordered paid to the County Treasurer of Santa Cruz County. ’ ’

Again, in describing the residue of the estate ordered distributed, the court described two promissory notes, and cash in a given sum of money “less inheritance tax.”

Nowhere is the amount of any inheritance tax fixed, nor any reference thereto made other than as above set forth.

Defendant paid to the plaintiffs out of the sum of $5,927.22 the sum of $5,034.65, and this action was brought to recover the difference between said sums, to wit, $892.57.

Unless defendant was entitled to retain something for the payment of an inheritance tax, it is conceded that plaintiffs are entitled to the said sum of $892.57.