Estate of Bauer

RICHARDS, J.

This appeal is from an order of the superior court of the county of Los Angeles, sitting in probate, denying the application of the appellants herein for an order directing the allowance and payment of a claim which had theretofore been presented by the appellant Cypress Lawn Cemetery Association, embracing certain charges and expenditures made by it in removal of ashes of the decedent several months after the death and funeral and cremation of the remains of said decedent from their primary place of deposit to another and, it is claimed, more fitting and suitable niche in the said appellant’s new columbarium solely upon the request and direction of its coappellant Hamilton A. Bauer, an elder son of said decedent. The additional facts preceding and attending the application for the allowance of said claim and the denial thereof by said court are in substance the following: Emile Bauer, the decedent referred to in appellants’ said application, died in the city of Pasadena on June 15, 1923, where for many years he had resided. He had been twice married. He left surviving him his widow by his second marriage and a younger son, the offspring of said marriage. He also left surviving him an elder son by his first marriage, viz., Hamilton A. Bauer, one of the appellants herein. The deceased left an estate of the approximate value of one hundred thousand dollars. Some years prior to his death he had selected a receptacle for the a'fehes of his deceased

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children by his former marriage and for his own remains, which in his will he directed should be cremated. The selected custodian of the ashes of his deceased children and himself -was the Cypress Lawn Cemetery Association, one of the appellants herein, and prior to his death the ashes of his said deceased children had by his direction been deposited in a niche in an older columbarium of such association. Upon his decease and after his funeral and the cremation of his remains his surviving widow, who with his said younger son had been named as the executrix and executor, respectively, of his estate, directed the local undertaker to transmit the ashes of her deceased husband to the Cypress Lawn Cemetery Association for deposit in said niche. Her direction in that respect was complied with and the deposit accordingly made. Several months went by when Hamilton A. Bauer, the elder son of the decedent, and one of the appellants herein, deeming the place of deposit of the ashes of his deceased father unsuited to a man of his wealth or station, went upon his own initiative to the said Cemetery Association, selected another niche in its new columbarium, directed an inscription to be prepared and placed upon the urn containing his father’s ashes, and upon their transference to the new place of deposit at considerable expense ordered the bill sent to the executrix and executor of his father’s estate, whom he had not consulted nor sought the concurrence or acquiescence of in making the foregoing arrangements and in incurring the expense incident thereto. It was the bill of expense thus incurred which, upon presentation, the executrix and executor of said estate refused to pay. Upon the hearing on the application of the appellants for an order compelling the allowance and payment by the estate of said claim Hamilton A. Bauer was the only witness examined and it was upon his testimony to substantially the foregoing facts that the order denying said application was predicated.