McCurrie v. Delaney
Before: Harrison
Synopsis
Estates of Deceased Persons — Commissions of Executor — Value of Litigated Land Not Belonging to Estate.—An executor cannot be allowed a claim for commissions upon lands, though included in the inventory of the estate, which were at that time involved in litigation, wherein a final judgment was subsequently rendered adverse to the estate.
Id.—Additional Allowance.—The commissions which the statute authorizes to be allowed an executor, is the compensation fixed by law for his care of the property belonging to the estate, and the court is not authorized to make any additional allowance, without a petition therefor showing the rendition of extraordinary services.
Id.—Excess of Claim Less Than Three Hundred Dollars—Appellate Jurisdiction—Order Settling Executor’s Account.—The fact that the share of the commissions in excess of the amount which should have been allowed is less than three hundred dollars, cannot defeat the appellate jurisdiction of the supreme court, which has jurisdiction in all such probate matters as may be provided by law, and is authorized to entertain an appeal from an order settling the account of an executor, , irrespective of the amount involved.
Id.—Appealable Orders—Order Settling Account—Decree of Distribution—Union of Orders.—An order settling an account, as well as a decree of distribution, is appealable, and the right of appeal from either of these orders is not affected by the fact that both of the orders were made at the same time, and included in the same paper under one signature of the judge.
Id —Dismissal—Service of Notice of Appeal.—The appeal from the order settling the account will not be dismissed because the notice of appeal therefrom was not served upon any other party than the executor; and where the order settling the account is reversed, it necessarily vacates the decree of distribution, and, in such case, the appeal from the decree will not be dismissed for failure to serve the notice of appeal upon one of the distributees named in the decree of distribution.
Harrison, J. The executor of the last will of Mary Delaney, deceased, presented his final account to the court for settlement and allowance, and, at the same time, petitioned for the distribution of the estate. In hiss account he included a claim for commissions upon two-parcels of land which had been included in the inventory of the estate, but which were at that time involved in litigation wherein a judgment was subsequently rendered adverse to the estate. The appellant, who is one of the heirs, contested this item of the account, but her objections were overruled, and the court settled the account, allowing the executor commissions upon this land, and thereupon made a decree of final distribution. This appeal is taken by her from the order settling the account, and also from the decree of distribution.
These two parcels of land form a portion of Lafayette square, in the city and county of San Francisco, and were in the possession of the deceased at the time of her death, and were afterward taken into possession by the executor, and cared for by him during his administration of the estate. He was allowed for all the expense incurred in thus caring for the property, and was also allowed commissions upon the income received therefrom. It was shown at the hearing that the land was a portion of that included in the action of San Francisco v. Mooney, 106 Cal. 586, for the recovery of Lafayette square, and that at the time the court made the order appealed from judgment had been rendered therein in favor of the city and county, and that an appeal therefrom was then pending. This judgment was. subsequently affirmed by this court.. (San Francisco v. Mooney, supra.) This land had been originally appraised at thirty-nine thousand two hundred dollars, and when the account came up for settlement, and the-[565]appellant objected to any allowance of commissions upon its valuation, the court ordered a reappraisement, and, •upon such reappraisement, the land was valued at one hundred and nine thousand two hundred dollars, “ upon condition that the estate has title to the same.” The record does not show at what time this reappraisement was made, or that any further proceedings were had upon the final account until after the filing of the supplemental account. The final account was filed March •30, 1892, and the objections thereto were filed in April, 1892. The supplemental account was filed in November, 1894, and when these accounts were again brought on for settlement the appellant renewed her objections to the allowance of commissions upon this amount, but her objections were overruled.
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