McPhee v. Corrigan

California Court of Appeal Mar 1, 1909 No. Civ. No. 561.Published

Before: Chipman

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Holding. The court held that a probate court has the authority to require an administrator to provide additional security for the protection of an estate, regardless of whether an appeal is pending regarding the settlement of the administrator's account. Upon the administrator's failure to comply with such an order, the court is empowered to revoke the administrator's letters.

Issues

Whether an order requiring an administrator to provide additional security is dependent upon the finality of an order settling the administrator's account.
Whether a probate court has the authority to revoke an administrator's letters for failure to comply with an order for additional security while an appeal regarding the account is pending.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court has the right and the power to fix the bond upon the amount it finds to be in the hands of the administrator even though an appeal be pending from its judgment as to the justness of that judgment.”

“The court is called upon to exercise a wise and salutary discretion for the protection of the estate, and we do not think such discretion should be disturbed except for its abuse.”

“Appellant having refused to obey the order of the court to furnish additional security, the only course open to the court was to revoke his letters.”

Synopsis

APPEAL from an order of the Superior Court of Mendocino County revoking letters of administration. Emmet Seawell, Judge presiding.

The facts are stated in the opinion of the court.

CHIPMAN, P. J.

Appellant was administrator of said estate, having been appointed as such, June 9, 1899 j he had

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neglected to file his annual account and on August 21, 1906, he was cited to render an account of his administration; on September 24, 1906, he filed an account, which being objected to by respondent, Alta McPhee, contestant and heir of deceased, was referred to a referee to take and state the account and on May 27,1907, he rendered his decision, and exceptions having been taken thereto, the matter was submitted to the court for decision on September 27, 1907, and on January 8, 1908, the court settled said account adjudging the sum of $21,475.67 to be due from said administrator to said estate.

On August 10, 1907, respondent filed her petition in said matter setting forth the above facts up to and including the reference of said account and stating that by his report the referee had found the administrator indebted to the estate in the sum of about $25,000; that the administrator had given the Pacific Surety Company as his bondsman in the sum of $22,500 and no more; that the said bond is insufficient and “petitioner further alleges that said Pacific Surety Company denies its liability to a large extent upon the said bond, claiming that Matie McPhee, the widow of said George S. McPhee, deceased, released the said surety company in so far as she could do so from all liability upon the said bond. That the bond of said administrator is, therefore, an unsatisfactory, insufficient and doubtful one. That J. S. Corrigan, the said administrator, is wholly insolvent and unable to respond to any damages to this petitioner or to any of the persons interested in said estate to any amount whatever. . . . That for the reasons above set forth the said bond of the said administrator is insufficient.” Wherefore petitioner prayed. that citation issue, a hearing be had, and that said administrator be required to file such additional bond as the court may direct.

This petition was heard with the petition for an accounting and on the same day that the court made its order settling the account, to wit, January 8, 1908, it made a further order “pursuant to a petition therefor by Alta McPhee, and for the reason appearing in said petition and in the order settling the said account as aforesaid, to wit: that the sum of $21,-473.67 was then due from said administrator to said estate,” and reciting also that “in addition thereto the annual rental value of the real property on hand belonging to said estate is

McPhee v. Corrigan

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Synopsis

CHIPMAN, P. J.

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