Miller v. Superior Court

CASHIN, J.

A proceeding to review an order of confirmation made by the Superior Court in and for the City and County of San Francisco in the matter of the estate of .William Miller, deceased.

The deceased in his lifetime, pursuant to an agreement with Herman Murphy and others, paid the taxes, amounting to $996.37, which were a lien on certain real property in Alameda County. The title to the property was in litigation between the parties, and it was agreed that in the event of a judgment adverse to Miller’s claim the amount should be repaid to him with interest and be secured by a lien on the land.

The litigation having resulted in favor of Murphy and his co-defendants, an action to foreclose the lien was commenced by Miller and was pending at the time of his death.

Mary Miller, his wife, was subsequently appointed as administratrix of his estate and the action was continued in her name.

After two trials of the action, the judgment first entered having been reversed, a judgment was entered on March 28, 1924, in favor of the estate for $1,370.21. The latter judgment was affirmed on appeal and was collected by the administratrix on November 3, 1926, the total amount received being the sum of $1,733.90.

A petition for a confirmation of sale was filed in the estate proceeding on October 27, 1926, this being followed on December 6, 1926, by a report of sale, both of which were signed and the latter verified by Daniel O’Connell.

It was alleged that petitioner loaned to the deceased in his lifetime the sum of $500 for the purpose of enabling the latter to make the payment under the contract with Murphy; that this sum had not been repaid, and that petitioner in

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addition paid the costs and rendered services as an attorney in the litigation leading to the recovery of the judgment by the administratrix, for which he had not been reimbursed or compensated

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that after the reversal of the judgment first entered therein the administratrix refused to proceed further in the action; whereupon at his request an assignment of the cause of action was executed to petitioner by the administratrix and her daughter Anna M. O’Connell.