Barnett v. Schaeffer

WASTE, P. J.

Certain of the heirs and devisees of Rebecca Schaeffer, deceased, and the administratrix, appeal on a question of law alone, from the order and decree settling the final account of the administratrix, and decreeing distribution of the residue of the estate. The respondent makes a preliminary objection and seeks a dismissal in the absence of a printed record.

[1]

The appeal is prosecuted under the alternative method. The transcript, prepared in the manner prescribed by section 953a of the Code of Civil Procedure, is properly authenticated by the clerk. It includes, among other papers, the verified final account, report, and petition for distribution, the written opposition and exceptions thereto, the order and decree settling the account, and directing distribution, which sets out the findings of the court upon the

[494]

matter in controversy. It was not necessary that the record be printed. The enumerated papers, constituting the ordinary judgment-roll

(Estate of Gamble,

166 Cal. 253, 255, [135 Pac. 970]), are properly presented in the typewritten “Clerk’s Transcript.” (Code Civ. Proc., secs. 953a, 953c, Supreme Court Rule VII.) The appellants have printed in full in the appendix to their brief, as required by the code, the portions of the record which they desire to call to the attention of the court, in presenting the point to be considered on this appeal. Nothing more was required. The cases relied upon by the respondent to support his contention were rendered inapplicable by the amendment to section 953a, adopted by the legislature in 1915.

(Silvers

v.

Grossman,

183 Cal. 696, [192 Pac. 534].)

Rebecca Schaeffer died testate, leaving four children, who were made devisees under the will. When the estate was in condition to be closed, the administratrix with the will annexed filed the final account and report of her administration, together with a petition for final distribution. As shown by the account, the property to be distributed consisted of quite a large amount of cash, one United States Liberty Bond, two notes and mortgages, and a claim against Henry C. Schaeffer, this respondent, for $790, alleged to be due for rent. One of the notes secured by mortgage also represented an indebtedness of the respondent. In the petition for distribution the administratrix asked that the total indebtedness of said Henry C. Schaeffer, including the claim for rent, be offset against, and deducted from his distributive share of the estate, which was somewhat in excess of the estate’s demand against him. The respondent filed written objections and exceptions to the account and petition for distribution, in which he denied that the sum of $790, or any amount, was due from him to the estate for rent, and interposed the bar of the statute of limitations against the claim. He resisted the prayer for a deduction of that amount from his distributive share of the estate.