National Bank of D. O. Mills & Co. v. Rider

CURTIS, J.

This appeal is from the same decree of distribution in the

Estate of George Rider, Deceased,

from which two other appeals were taken and which have been decided this day

(ante,

p. 724 [251 Pac. 799]). The appeal herein is from that portion of said decree charging the appellant, the executor of the will of the deceased, with §56,206.32, as representing the total balance in cash on hand in said' estate. Appellant contends that it was erroneously charged with $28,051.49, which it had paid to Annie Rider, the surviving wife of. said deceased, and that an error in the figures, amounting to §322.76, had been made in computing said balance.

The item of §28,051.49 was paid by said executor to Annie Rider, the widow of said deceased, under what said executor conceived to be the intent and purpose of the last will and testament of said deceased, a copy of which may be found in the decision of this court above referred to. By the terms of this will the whole estate of the testator was devised and bequeathed to the National Bank of D. O. Mills & Co., as trustee, to pay the entire income there

[744]

from to the widow of said deceased during her lifetime. The National Bank of D. 0. Mills & Co. was also appointed the executor of said will and during the administration of said estate and, acting under the terms of said will as it construed them, said executor paid to Annie Rider the income from the estate as it received the same from time to time. $11,851.49 was in this way paid to Annie Rider during what was practically the first year after decedent’s death. This item was included in the executor’s first annual account. During the next period of time, practically eighteen months, covered by the second annual account, the executor in the same manner paid Annie Rider $16,200 and this amount was included in its second annual account. These accounts each came on regularly for hearing after due notice given and were approved and allowed by the probate court. Thereafter, however, and at the hearing of the petition for distribution the probate court, notwithstanding these previous orders approving the first and second annual accounts directed said executor to account for all sums of money paid Annie Rider during the period of time covered by said accounts and charged said amounts against said executor in fixing the balance of money in its hands for distribution. Appellant contends that this action of the probate court was erroneous and that the court had no power after settling the two accounts of the executor to thereafter charge it with the items which had been included in said accounts and allowed and approved by the court. As supporting this contention appellant relies upon section 1637 of the Code of Civil Procedure and