Purcell v. Young
Before: Temple
Synopsis
Estates of Deceased Persons—Petition to Remove Administrator— Evidence—Declarations of Deceased.—Under a petition to remove an administrator upon the ground that the deceased had, at the time of his death, a large sum of money, which came into the possession of the administrator, or of which he had knowledge, which he failed to include in his inventory, evidence of declarations made by the deceased in respect to the value of his estate, and that he had a large sum of money in his house, is not admissible against the administrator, to prove the ownership or possession of the money.
Id.—Interest in Partnership—Transfer by Decedent—Removal of Administrator.—Where the only evidence tending to show that the decedent owned an interest in a partnership with the administrator was the fact that, a few days before his death, he assigned his interest in it to his wife, and there are no grounds for attacking the transfer, the administrator cannot be removed for failing to show the partnership interest of the deceased in the inventory.
Id.—Improper Payment of Attorney’s Fee.—The fact that the administrator improperly paid an attorney’s fee is no ground for his removal.
Id.—Custody of Assets by Administrator—Power of Court—Bond of Administrator.—An administrator cannot be deprived of the actual custody of the assets of the estate by an order of the probate court directing him where and how he shall keep them; but the administrator is liable for their safety on his bond, and the court cannot lawfully take charge of the assets or deprive interested parties of the security of the bond.
Temple, J. This is the second appeal in this matter. (In re Welch, 86 Cal. 179.)
After the remittitur was filed, the petition for the removal of the administrator was amended, and the mat[607]ter retried. The court found as before, and also three additional facts, and again removed the administrator. The order is expressly based solely upon the new facts found on the retrial. They are: 1. That deceased had, at the time of his death, ten or twenty thousand dollars in money, which came into the possession of the administrator, or of which he had knowledge. That he failed to include it in his inventory, or to inform the court thereof; 2. That said Purcell collected for Henry Welch, before Welch’s death, some twelve hundred dollars, which he has not accounted for or charged himself with; and 3. That Welch was a partner in the firm of “ McKenna and Purcell,” his interest standing in the name of said Purcell, who was only nominally a partner, and that he has not shown that interest in the inventory, or given any information in regard thereto to the court.
In regard to the first finding, which, no doubt, is most relied upon, if the evidence produced were competent, it does raise a grave suspicion that some assets were concealed, either by the widow or her brother, who is the administrator, or both.
It is not necessary to discuss the question as to whether this finding was supported by the evidence. Errors were committed on the trial in the admission of testimony which will necessitate a new trial.
The evidence was almost all hearsay, consisting largely of declarations made by the deceased to the effect that his estate was of the value of fifty, sixty, or seventy thousand dollars, and that he had a large sum of money in his house. This testimony was not admissible against appellant. There is no analogy between such statements and declarations made by a person in possession of property characterizing his possession. In the last •case, the claim made by the possessor is of itself a material matter. Or, in the instances where it is not so, rthe declarations are against interest.
Such was not the case here. The declarations were material only as showing the fact asserted, to wit, the [608]
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