Rafferty v. Kearney (1901) · DecisionDepot

Rafferty v. Kearney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jan 24, 1901 No. S.F. No. 2334.Published

Before: McFarland

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Holding. An order settling an executor's account is conclusive as to all items contained therein once proper notice has been given, and a court lacks the authority to set aside such a prior order in a subsequent proceeding.

Issues

Whether a court may disregard and set aside a prior order settling an executor's account when settling a subsequent account.
Whether an order settling an executor's account is conclusive as to the items contained therein.

Disposition. reversed

Quotations verified verbatim against the opinion

“it is clear that when proper notice has been given it is conclusive as to all items contained in it, except as against persons laboring under some legal disability.”

Synopsis

APPEAL from orders of the Superior Court of the City and County of San Francisco settling the accounts of an executor and directing the payment of a claim against the estate of a deceased person. J. V. Cofiey, Judge.

The facts are stated in the opinion of the court.

[427]

McFARLAND, J.

The transcript presents two appeals by the executor; one from an order entered March 23, 1899, settling his third annual account, and the other from an order entered at the same time directing him to pay the claim against the estate of Peter A. Kearney, amounting with interest to $613.

The main question involved in the appeal first above mentioned is whether the court erred in disregarding a former order made November 24, 1897, settling appellant’s second account, and in expressly setting aside said former order and re-' settling the former account and disallowing nearly all the items of credit therein which had been allowed and settled by the former order. The facts necessary to be stated are these: Appellant filed his first account as executor in December, 1894, with a report of his administration, the account showing that he had on band $102.47; and, after due notice-of the hearing on February 6, 1895, the court on that day made an order settling and allowing the account as presented. On June 15, 1897, he filed his second account, in which, beginning with the $102.47 balance on hand as per the first account, a great many items of receipts and expenditures are set forth. The items of expenditures consisted mainly of interest on a mortgage on the real property of the estate, taxes and insurance on the same, repairs on the buildings on the property, which was rented, necessary to beep the same in proper condition, water rates, etc. The account showed total receipts, $1,022.47, and total expenditures, $737.62—leaving a balance on hand of $284.85. An order of court was duly made setting the hearing of this account for the 28th of June, 1897, at 10 o’clock A. M., at the courtroom of the court, and notifying all persons interested in the estate “then and there to appear and show cause if any they have why the said account should not be settled and allowed.” Thereafter, on August 3, 1897, the court made' an order in which it was declared that proof had been made to the satisfaction of the court “that notice of said settlement had been given as required by chapter X, title XI, of part III of the Code of Civil Procedure, and as ordered by the court”; and further, that “it appearing that said account is true and correct, and is supported by proper vouchers, it is ordered that said account be, and the same is hereby, settled and allowed as presented and filed.” On

[428]

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account; and it shows a balance in the hands of the 'executor of $373.30. To the settlement of this account Dr. Peter A. Kearney, a creditor of the estate whose claim had been allowed, filed objections in which he attacked the second account which had been allowed as aforesaid, and averred that the second account was settled without proper showing or filing of vouchers; that certain payments which appear by the second account to have been made were in fact not made; that certain expenditures set forth in said second account do not truly represent expenditures actually made by the executor; that vouchers were taken for services rendered and materials furnished for repairs on the property for more than the amounts which the executor actually paid; that even if said expenditures were made, they had become necessary through the negligence of the executor, etc. Due notice was given according to law of the settlement of this third account, and it came on regularly to be heard on the fourteenth day of February, 189.9. Certain evidence was taken, and the court made the order settling said third account, from which prder this appeal is taken. In this order the court recites that the executor had been negligent in not selling the real property of the estate under an order which had been made authorizing him to do so, and that, therefore, all the disbursements which he had made for interest on the mortgage, repairs, insurance, taxes, etc., since October 5, 1895, and which had be'en allowed in the second account which had been settled as hereinbefore stated, should be 'disallowed, and that “the former order of November 24, 1897, settling, the said executor’s annual account is hereby set aside on that account, and the said second account is hereby now settled and allowed, showing a balance in the hands of the said executor on the fifteenth day of June, 1897, .... amounting to $711.42, which said sum of $711.42 is to be added in said executor’s third account to the sum of $475, rents with which he charges himself as having been received, making a total credit to the estate

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