Ginocchio v. Coffman

[129]

THE COURT.

The administrator appeals from an order charging him with interest, on settlement of his second account, from the date of the settlement of his first account.

In his second account, which was filed February 16, 1898, after an order of the court had been made to show cause why he should not make the account, the administrator charged himself with seven thousand nine hundred and seventy-nine dollars and seventy-nine cents balance cash on hand from last report. The first account was settled July 28, 1891. In the second account, which is duly verified, the administrator makes a statement explanatory of his failure to close the estate; that on January 18, 1891, an action was commenced against him, as administrator, in the superior court of the city and county of San Francisco, for an amount in excess of the funds in his hands belonging to the estate, and that the suit was still pending; that it had been several times set for hearing at his request, and at the time of filing the account was set down for hearing' February 23, 1898. Some few items of expenditures, since the-settlement of the first account, were allowed and the account was settled, showing a balance of cash on hand of seven thousand six hundred and thirty-seven dollars and twenty-one cents, and the court charged the administrator with legal interest on this balance from July 28, 1891, amounting to three thousand four hundred and thirty dollars.

When the account came on to be heard, on February 28, 1898, the day fixed for the hearing, the attorneys for the heirs at law being present, the hearing was continued to March 14th and again to March 16th, on which last day the attorneys for the heirs made certain oral statements by way of objections to the account and report. They claimed that the administrator should be charged with interest from July 28, 1891, and in support of the claim stated that the first account as settled showed that all the debts and expenses and charges of administration had been fully paid, and that the only necessity for not closing the estate was the pendency of the lawsuit referred to above; that no proper efforts had been made by the administrator to bring the case to trial, which he could have done by-due diligence, and that the continued excuse of the administrator of the pendency of said suit showed had faith and a desire-