Merrill v. Cavagnaro

TYLER, P. J.

This is an appeal from a decree settling the first account of the executor herein. The facts necessary to a discussion of the case show in substance that Elyse C. Rindge died in November, 1927. At the time of her death she was the owner of an estate appraised at the sum. of $147,119.73, including a house and lot situated on the northwest corner of Pacific Avenue and Gough Street, appraised at $100,000. Her will, after making specific bequests of jewelry and other personal property, and a specific devise of a certain parcel of real property, then left $50,000 in trust for her minor son with her brother Adrian Cavagnaro, who in his capacity of executor is respondent here. Other bequests were $12,500 to respondent personally; to her sister Albena Cavagnaro, $12,500; to appellant Mrs. Jack Lee, $5,000; to appellant Carrie M. Merrill, $5,000; to appellant Melvin Walker, $2,000; and to Celia Smith, $1,000. The only property of the estate other than that specifically devised and bequeathed, is the house and lot on Pacific Avenue, and the furnishings thereof.

Respondent was appointed executor November 28, 1927, at which time the house was rented and remained so rented until April 30, 1928. Thereafter the property was again rented for a period of some six months. The rent obtained

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totaled $13,425 for approximately eleven and one-half months, or between $1100 and $1200 a month. After the last tenant vacated the premises on April 1, 1929, respondent placed the same in the hands of real estate agents for rent, bnt was unable to procure a tenant. He thereupon moved into the premises with certain members of his family and continued to occupy the same up to February 1, 1932, at which time the settlement of his first account came on for hearing. Upon such hearing of the account, appellants objected to its settlement on the ground (1) that the executor failed to include therein the rental value of the property during the time he occupied the same; (2) that except in two instances no claims were presented for what apparently were debts of the deceased; and (3) that the account sought to credit the executor with the amount paid as inheritance tax, whereas such payment should have been charged to the respective shares of the different legatees. After a hearing, appellants’ objections were all overruled and the court approved and settled the account without making any findings of fact. It is this order from which the present appeal is taken.