Chadbourne v. Chadbourne
Before: Chipman
Synopsis
Estates of Deceased Persons—Removal of Executors — Effect of Appeal—Suspension from Office.—Where a will has been proved and the executors have been removed for failure to publish notice to creditors within the required time, pending an appeal from the order removing them they are suspended from office, until the final determination of the appeal.
Id.—Jurisdiction of Court Pending Appeal—Appointment of Special Administrator — General Administration not Permissible.— Pending such appeal the court may appoint a special administrator to collect and take charge of the estate, but has no jurisdiction to appoint a general administrator, until the order appealed from has become final.
lb.—Appointment of Administrator With the Will Annexed—Reversal of Order.—The court had no power, pending such appeal, to appoint an administrator with the will annexed on nomination of the widow, and such order must be reversed.
CHIPMAN, P. J.
This is an appeal from an order appointing an administrator with the will annexed pending the appeal from an order revoking the appointment of the executors of said will.
On December 15, 1909, Dennie May Chadbourne, surviving wife of deceased, filed her petition in which it was alleged that F. A. Chadbourne and she, herself, had been duly appointed executors of the will of deceased; that her coexecutor had neglected for two months to give notice to creditors of the estate as had been ordered, and that she did not give notice “because she relied upon the' assurance of said F. A. Chadbourne that the said notice had been given”; that, “subject to the revocation by the court of the letters testamentary issued as aforesaid to the said F. A. Chadbourne, petitioner is willing to, and will, upon such revocation being made, resign her aforesaid appointment as such executor.”
She prayed that a day be appointed for "the said F. A. Chadbourne “to show cause why his said appointment and letters as executor shall not be revoked”; and that until the hearing the powers of the said F. A. Chadbourne be suspended and “your petitioner be appointed special administrator of
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said estate and upon the hearing petitioner be appointed administrator.”
The court found that F. A. Chadbourne caused directions to be given that notice to creditors should be published in the “Solano County Courier,” on the day the court ordered notice to be published, and that Dennie May Chadbourne believed such notice had been published, and did not know to the contrary until just before the filing of her petition; that “no damage accrued to the estate by reason of the neglect to give notice to the creditors other than such as may arise from delay in the administration of the estate.” On January 14, 1910, the court gave its judgment, which was filed January 20th, that the letters of said executors be revoked and appointing Mrs. Chadbourne special administrator. On January 14, 1910, respondent, J. W. Warboys, filed his petition for appointment as administrator of said estate as the nominee of Mrs. Chadbourne and on the 17th of January appellants, Joseph R. Chadbourne and Grant Chadbourne, brothers of deceased, filed their petition praying for letters of administration with the will annexed of said deceased, and on the same day filed their petition for appointment as special administrators pending the hearing of said petitions. On January 31st, P. A. Chadbourne, Joseph R. Chadbourne and Grant Chadbourne filed their opposition to the appointment of said Warboys and on the same day P. A. Chadbourne filed notice of appeal from the judgment entered January 20th, revoking his letters and appointing Dennie May Chadbourne special administrator. On January 31st the petition of War-boys for letters, the opposition thereto, and the petition of Joseph and,Grant Chadbourne for letters came on for hearing and evidence, written and oral, was introduced. Among other things, the court found: That the authority of said executors, P. A. and Dennie M. Chadbourne, was, on January 14th, revoked; that on that day (there being no executor) said Warboys filed his petition for letters “at the request and upon the appointment of the said Dennie May Chadbourne . . . and said request and appointment were duly and regularly filed herein on January 14, 1910”; that on January 17th Joseph and Grant Chadbourne, brothers of deceased, filed their petition for special letters and also for letters with the will annexed; that “the said Dennie May Chadbourne and
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