De Rome v. Great Western Smelting & Refining Co.

[400]

MELVIN, J.

This is an appeal from an order settling the final account in the estate of Louis De Rome, deceased, and decreeing distribution of certain machinery and of $1,067.77 in the possession of the administrator to the widow and the four children of said Louis De Rome.

The record reveals the fact that after his appointment as administrator of the estate of his deceased father, Louis M. De Rome conducted the affairs of the business which was the principal asset of the estate. The elder De Rome had operated a bronze and bell foundry and the business was continued by the administrator of his estate. Admittedly the debt due to appellant was incurred during the period in which the work in the foundry was thus carried on, without order or permission of the court by Louis M. De Rome. Respondent insists that, upon the authority of decisions of this court, notably

Estate of Rose,

80 Cal. 166, [22 Pac. 86], Great Western Smelting and Refining Company is not a “party aggrieved,” and therefore is not entitled to appeal from the order settling the account. (Code Civ. Proc., sec. 938.).

Appellant admittedly is not contending upon this appeal that the estate is liable for its debt, but only is seeking to have the administrator account for money received by him officially and (so it is contended) not properly accounted for. There were two accounts filed. In one the administrator set forth certain payments as ‘.‘family allowance,” but no formal order for such an expenditure had ever been made by the court. Before any proceedings looking to the settlement of this account had been taken a second one was filed omitting all reference to family allowance and taxes. This is the account which was "settled. It is argued by appellant that the unauthorized payment of these sums by the administrator amounted to an appropriation of the assets of the estate by him. But there was no showing that this money came from the profits of the business conducted by the administrator, and under the authority of

Estate of Rose, supra,

the estate was not interested except in the profits of that enterprise. Therefore the court held that the administrator could not be compelled in this probate proceeding to account for the money.