In Re Estate of Carr

MELVIN, J.

These appeals are0 from a judgment, order, and decree of distribution in the Estate of William Joseph Carr, Deceased. Alfred Fuhrman appeals as executor of the last will of said Carr, as executor of the last will of Alice Victory, deceased, and individually as a creditor of the Estate of Victory. The city and county of San Francisco appeals as a creditor of the latter estate.

William Joseph Carr died testate on December 5, 1914. After proceedings duly had in that behalf Alfred Fuhrman, Esq., an attorney of this court, was appointed executor and qualified. By the terms of the will the three sons of the testator, John J., William T., and Walter R. Carr were bequeathed each one dollar; to Maud R. Carr there was a bequest of $250; and the residue was left to Alice Victory, aunt of the testator, who at the time of William Joseph Carr’s death was residing at the City and County Relief Home, in San Francisco.

On May 14, 1915, the three sons of the testator filed their petition for contest of the will after probate, alleging that at the time of making the purported will, William Joseph Carr was mentally incompetent to make testamentary disposition of his property. The executor filed an answer to this contest, and after the matter was at issue trial was postponed from time to time until the last day of February, 1916, when Mr. Fuhrman, as executor, filed his first and final account with an accompanying report and a petition for settlement of said account and for distribution. In the petition, after referring to the pending contest, he used the following language: “The said executor has now been informed, that said contestants desire to withdraw and dismiss said petition and contest,—and desire this estate to be closed, because they have effected a compromise with the heirs of Alice Victory, deceased, the residuary legatee of the above-named deceased.” It appeared, further, from the petition that Alice Victory had died on the fifth day of June, 1915, and that Mr. Fuhrman had been appointed and

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had qualified as executor of her estate. Hearing of the petition was duly had. At said hearing it appeared that the sons of William Joseph Carr had entered into an agreement with the two legatees of the estate of Alice Victory, deceased, who were James Caldwell, a nephew, and Edward Finley, a friend. By the terms of this writing it was stipulated that for and in consideration of the dismissal of the contest, the court was asked to distribute one-half of the assets of the Carr estate to John J. and Walter B. Carr, from which was to be deducted one hundred dollars to be paid in settlement of an unallowed portion of an undertaker’s claim and $250, the legacy to Maud B. Carr. The contest having been dismissed, the court made its decree distributing one-half of the assets of the estate of William Joseph Carr to the estate of Alice Victory, deceased, and the other half to the former contestants, subject to the agreed deductions. The court also denied Mr. Fuhrman ’s request for extra compensation for extraordinary services.