Hatfield v. Superior Court

FINCH, P. J.

This is an original application for a writ of review whereby petitioner prays for the annulment of an order of the respondent court setting aside its decree settling the final account and distributing the estate of Henrietta Kaiser, deceased.

[601]

Petitioner ivas the attorney for George Kaiser, the executor of decedent’s last will. As such attorney, petitioner conducted all the legal proceedings in the administration of the estate and prepared and filed a final account and petition for distribution, which the executor duly verified. The final account credits the executor with $802.69 as attorney fees and the same amount as commissions of the executor. These commissions and fees were computed upon the value of the estate as set forth in the final account, consisting of cash in the sum of $27,169.83 and other property of the value of $100. The "court settled the account as presented and distributed the estate, in accordance with the terms of the will, in equal shares to George and Alexander Kaiser, the sons of decedent.

The decree of distribution was entered June 5, 1922. On the sixth day of October, 1922, George Kaiser and Alexander Kaiser filed notice that on the sixteenth of that month they would move the court for an order setting aside the decree settling the final account and distributing the estate on the ground that the same was made and taken against them “through their mistake, inadvertence, surprise and excusable neglect.” Accompanying the notice of motion, there was filed the affidavit of George Kaiser, stating that the moneys set forth in the final account and petition for distribution as a part of the estate of decedent had been deposited by Henrietta Kaiser and affiant in several banks “in the names of the said Henrietta Kaiser and George Kaiser under agreements entered into between said Henrietta Kaiser and affiant and the said several banking institutions that the said sums of money so deposited and its accumulations were deliverable or payable to either the said Henrietta Kaiser or affiant or to the survivor of them”; that after the death of decedent and prior to the filing of the petition for probate of her will, affiant consulted petitioner herein relative to the property of decedent and fully informed him that said bank accounts “were joint accounts standing in the names of affiant and said decedent and payable to either or to the survivor”; that petitioner herein thereupon “advised affiant that the said bank accounts belonged to the estate of said Henrietta Kaiser, . . . deceased, and must be probated upon in order that the title thereto be finally passed to the heirs of said decedent; that affiant