Estate of Roach

PRESTON, J.

The order appealed from is reversed. On March 3, 1928, Joseph Roach died intestate in the city and county of San Francisco, leaving surviving him a widow, respondent herein, their minor daughter, and, by a former marriage, a thirty year old son, appellant herein.

Respondent, upon proceedings in due form, having been appointed administratrix of the estate of said deceased, filed therein her duly approved inventory, listing as the entire estate the following items: $1510.22 in money, $250 in

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bonds and an automobile appraised at $500, all stated to be community property of herself and said deceased. Thereafter she petitioned under section 1469 of the Code of Civil Procedure to have set over to her the whole estate, the net value of which did not exceed $2,500, but after deduction of costs and expenses was about $1500.

Appellant thereupon filed his objections to the inventory and his petition for the removal of said administratrix upon two general grounds, to wit: First, her failure to account for, report or inventory certain real estate, which at the time of his death was the separate property of said deceased; and, second, her failure to account for the sum of approximately $9,000, also the separate property of deceased, which was carried in their joint names in a certain bank, from which it was withdrawn by said administratrix and converted to her own use.

Upon the hearing, appellant placed on the stand as his first witness the pharmacist who had filled the physician’s prescriptions during the last illness of deceased, preparatory to offering further proof by which he intended to show that deceased, shortly before his death, while under the influence of narcotics and mentally incapable, had been influenced to execute a deed, not recorded until after his death, of certain real property to respondent, which property, so fraudulently procured, she had failed to include in the assets of said estate. The court, upon learning its purpose, stopped the examination of said witness and refused to hear further testimony upon the subject. After considerable discussion he ruled that the only remedy of appellant was a suit to set aside the deed or some proceeding in equity and he thereupon granted respondent’s application and made his order settling her account, discharging her as administratrix and assigning the entire estate to her as the widow of said deceased, for the use and benefit of herself and said minor child. From said order appellant thereupon pursued this appeal.