In re Estate of Radovich

Belcher, C. C. In 1870, S. Martinovich was duly appointed executor of the last will and testament of L. Eadovich, deceased, and he continued to act as such executor until August, 1882. Among the assets of the estate which came into his possession as executor was a certificate for five shares of the capital stock of the San Francisco and Oakland Eailroad Company. This stock was mentioned in the inventory, and was appraised at $250. Martinovich resigned his place as executor in 1882, and J. L. Eadovich Was appointed administrator of the estate with the will annexed.

Martinovich never obtained any order for the sale or disposition of the stock, and never turned the certificate over to his successor. Subsequently, in March, 1885, Eadovich, as administrator, obtained an order from the court requiring Martinovich to appear and render an account under oath of the five shares of stock which he had received and held as executor.

To this order Martinovich answered, denying that, as executor or otherwise, he ever received the five shares of stock referred to, and alleging that at the time of L. Eadovich’s death, the stock was, and ever since had continued to be, worthlesss, and of no value whatever.

A hearing was had before the court, at which Martinovich appeared and testified that he was executor of the last will of L. Eadovich, deceased, and that, prior to November 28,1873, as such executor he had the control and possession of the said five shares of stock as a part of the [538]assets of the estate, and “ that he had indorsed the stock as such executor, and had delivered the same to A. D. Splivalo, his attorney and agent, to sell it for whatever he could, and that witness, as such executor, had filed accounts, but had never accounted for said stock, or the proceeds of sale thereof, and that he had been allowed by the court in his accounts and had received from the estate all his commissions, disbursements, and charges, and claims of all kinds, including attorney’s fees in matter of said estate, and that nowhere and in no manner had he accounted for said shares of stock, but had omitted all mention thereof in his accounts, as he did not consider them of any value- that he had never applied to the court for authority to sell the stock, and that his indorsement of the same and the delivery of the same to said Splivalo was without order from court.”

Splivalo was called as a witness, and testified “that he had been attorney for the estate of L. Radovich, deceased, .... and that said Martinovich had indorsed the stock as executor, and told him to sell it for what he could get and keep it for his services; that the stock was not indorsed by any other person than the said Martinovich; that the stock was considered of no value whatever, but that witness sold it for $450 some time prior to November 28, 1873; that $450 was not its value, although he got that sum for it; that the stock had no value; that he received the stock as part compensation for his services in said estate; and that if it were not credited in the accounts, it was through forgetfulness.”