Grivel v. Wardlaw

YORK, J.

The present appeal is from the “decision and order rendered in the above entitled estate on the 2nd day of September, 1930, and filed in the office of the Clerk of the Superior Court of the County of Imperial on the 2nd day of September, 1930, and from the whole thereof wherein said decision and order settles and approves the account of John R. Wardlaw, as the administrator of the estate of Charlie T. Wardlaw, deceased”. It is called to our attention that the account so settled was in fact an account filed as a “supplemental and amended account”, after the death of C. T. Wardlaw, by respondent John R. Wardlaw as his personal representative. This account was settled and approved with the exception of one item.

Because of the divergent statements made by counsel in their briefs and at the time of the oral argument before this court, we will quote in full the order of the court from which this appeal is made:

“In the matter of the filing of the Supplementary and Amended Account of John R. Wardlaw, Administrator of the Estate of Charles T. Wardlaw, deceased, and the objections filed thereto by Leon R. Grivel, present Administrator of the Estate of Rene Grivel, deceased:

“It is the opinion of the Court that the said Supplementary and Amended Account and Report of John R. Wardlaw, Administrator of the Estate of Charles T. Ward-law, deceased, should be settled and approved and the same is hereby ordered settled and approved in its entirety, with the exception of that portion of the account which relates to 271 bales of cotton, which it is the opinion of the court were received by Charles T. Wardlaw during his lifetime and during the time that he was acting as Administrator with the Will Annexed of the Estate of Rene Grivel, deceased. It is the opinion of the court that the accounting with respect to this, item of property is not sufficient, and that further evidence should be adduced with respect to it, particularly as to the amount received from the sale of cotton, and what, if any, disbursements were made by said Charles T. Wardlaw from such amount.”

[188]

About thirteen years ago Rene Grivel died testate in Imperial County, California, leaving at the time of his death a widow, to whom he had been recently married, and five minor children by a former marriage. His widow was named executrix of his estate. She immediately relinquished her right to appointment and nominated C. T. Wardlaw, now deceased, as administrator with the will annexed, and his appointment immediately followed. During his lifetime Rene Grivel, the deceased, had been engaged in business both in Imperial County and in the Republic of Mexico, and C. T. Wardlaw took charge of such business both in Imperial County and in the Republic of Mexico. Although the widow was appointed and recognized as the administratrix by the court of first instance in Mexicali, Mexico, the apparent authority of C. T. Wardlaw in Mexico was an appointment by her, as administratrix, of said C. T. Wardlaw and Dayton L. Ault, as her attorneys-in-fact in Mexico. She appointed them to represent her jointly or separately as administratrix and as heiress of the estate of Rene Grivel. At the time of the administration of the estate in Mexico, one J. M. Hernandez and one B. E. Zuazua were appointed “tutors” for the minor children of the decedent by a former wife. A “tutor” under the laws of Mexico is the representative of the minor heirs appointed by the court. It was their duty “to approve on behalf of minors expenditures made from estate funds”. In 1921 or 1922, the courthouse in Mexicali burned, and the court records were destroyed and as result very little documentary evidence appears in the bill of exceptions, upon which this appeal is made, as to the administration of the estate in Mexico. C. T. Wardlaw entered upon the performance of his duties in the state of California and in Mexico and performed those duties until his death ten years later, when the respondent herein, John R. Wardlaw, was appointed the administrator of the estate of Charles T. Wardlaw, and as such filed an account in the above-entitled estate for the said deceased C. T. Wardlaw, as the representative of said C. T. Wardlaw, deceased, in California.