Estate of MacHado

This appeal was first heard by the district court of appeal for the third district, and after decision by it transferred to this court. In deciding the case the district court of appeal handed down an opinion, written by Judge Prewett, very concisely and satisfactorily disposing of most of the questions involved. That opinion, with the exception of the direction for reversal of the order appealed from, is as follows:

"In the matter of this estate there are two appeals. One is by the administrator and the other by the widow. The administrator was appointed as such upon the waiver and consent of the widow. He agreed to serve without compensation. Differences having arisen between the parties, he tendered his resignation. This resignation was tendered after the trial court had intimated the existence of sufficient grounds for his removal. He filed his final account and *Page 248 these two appeals are the result of the action of the trial court in allowing and rejecting items therein contained.

"The rulings on ten items are assigned as error; but as to most of them the action of the trial court is so clearly right that they may be disposed of in a few words.

"1. The court refused to allow the administrator credit for the sum of $725 paid to the widow by him prior to his appointment as administrator and long before any family allowance was authorized. The court properly held that this advancement was not by way of family allowance and relegated the claimant to other remedies.

"2. The administrator claims the sum of $236, paid by him for a lot in a cemetery near San Francisco for the burial of the body of the deceased. The court properly held that this lot was purchased by the administrator for his own purposes and that some of his family are buried therein. The widow testified that she was not consulted about the matter and that she intends to remove the body of her husband to the county of Butte, where she resides.

"3. The administrator claims $115 which he paid out for automobiles for the use of guests in attending the funeral. However, this item is not included in the account, it is not made the subject of a finding, and the court neither allowed nor rejected it.

"4. The administrator insists that he paid a claim of the Butte City National Bank of Chico in the sum of $1,531.65, for which payment he should receive credit. However, it was found by the court upon competent evidence that the payment was not made by the claimant but by the copartnership of which deceased was in his lifetime a member. Moreover, the payment was made without the presentation of any claim therefor and the court has not found that the same was justly due and was paid in good faith. The claim was properly rejected.