Gianelli v. Moulton

VAN DYKE, J.

This is an appeal by Bertha Gianelli from the judgment and order of the superior court of San Joaquin County settling her account as executrix of the last will and testament of B. Gianelli, deceased.

B. Gianelli died December 21, 1902. After his death on January 9, 1903, his widow was appointed by said court executrix without bonds, in accordance with the terms of the decedent’s last will and testament. Decedent left certain real estate and two grocery-stores in Stockton, one at California and Fremont streets, and one at Weber Avenue and El Dorado Street, in said city. After the said executrix had been running the stores in question for some five months, certain creditors of the deceased became dissatisfied with the management of the estate and petitioned said court to compel the executrix to give bonds. Thereupon, after hearing, the court ordered the executrix to give bonds in the sum of nineteen thousand dollars, whereupon she resigned, and J. S. Moulton, the public administrator of San Joaquin County, was appointed administrator with the will annexed of said estate, and took possession of both stores. The executrix, under order of the court, filed her account and report of her administration of said estate. Said creditors and the public administrator, respondents herein, objected to the same and filed a contest, with the result that the court disallowed certain items of the account, and also charged the executrix with the estate not accounted for, and thereupon “ordered, adjudged, and decreed that the said executrix, Bertha Gianelli, pay to J. S. Moulton, as the public administrator of the county of San Joaquin, state of California, as administrator with the will annexed of the estate of B. Gianelli, the sum of $2,215.57, but out of said sum of $2,215.57 said Bertha Gianelli shall be entitled to retain the sum of $720, family allowance, and $156.65, her compensation as said executrix, and subject to the above payment, and said account is hereby in all respects as rendered, approved, allowed, and settled.”

It is contended on behalf of the appellant that the evidence does not sustain or justify the findings and decree that the

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executrix failed to turn over all the goods in the store when she resigned, and, further, that the court erred in finding and decreeing that the executrix had made a gain of $614.98 in carrying on the business of the decedent.