Mathewson v. Geer

SEARLS, C. John W. Mitchell died testate November 26, 1893. By his last will he bequeathed to Grace Mathewson, Minnie Henderson, and Charles Henderson (the assignor of Ellen Wetherbee and B. Schwartz & Co.) legacies of $5,000 each, amounting in the aggregate to $15,000. The will was admitted to probate December 16, 1893, and letters testamentary issued to Henry F. Geer and George S. Blóss, the executors named therein. They duly qualified and gave notice to creditors. The decree establishing such notice was made November 21, 1895. An inventory and appraisement was filed November 21, 1895, showing the estate to be of the value of $1,364,307.55. The time for presenting claims had expired, and secured claims amounting to say $160,000, and unsecured claims amounting to $18,000, had been allowed. The respondents filed their petition for a partial distribution under section 1663 of the Code of Civil Procedure, on the seventh day of April, 1896, containing allegations which, if true, entitled them to distribution.

The executors (appellants) filed their opposition to the petition May 16, 1896, averring in substance that there is not sufficient funds on hand or readily attainable to pay the legacies, and that to pay them would embarrass the administration of the estate; that they had been unable to sell the real estate although they had tried to do so, etc.

A hearing was had May 16, 1896, after due notice to all parties in interest, and the cause was submitted and taken under advisement by the eoprt.

On September 11, 1896, the court denied the application of the petitioners “without prejudice to making another application.” Thereafter, and on the seventeenth day of December, 1896, the respondents gave notice to appellants of a motion to set aside the order of September 11th, and for a rehearing and reargument of the application for a partial distribution. This motion was based upon a stipulation between appellants and respondents executed after the submission of [393].the case and before its decision, viz., on May 26, 1896, whereby it was agreed that no further proceedings should be had in the application for distribution, and that the case should stand submitted and not be decided for six months from date. In consideration thereof the executors agreed to pay to each of the three respondents the sum of eleven hundred and sixty-six dollars and thirty-three and two-thirds cents on or before June 15, 1896. These several sums were paid to the respondents. This stipulation was not filed, and so far as appears was not brought to the attention of the court before its decision in the case. Upon the further hearing and argument the former order was set aside and an order or decreé was entered granting the petition and ordering “the executors of said estate to pay the legatees or their assigns their respective shares of said estate under the will of said deceased, such payments to be made one-third on or before the first day of March, 1897, and the balance on or before the thirtieth day of May, 1897, with legal interest thereon, less the inheritance tax thereon.” It was further ordered “that no bond be required of said petitioners on said distribution.” The order is dated February 27, 1897. Appellants excepted to these rulings and prosecute this appeal therefrom. The case comes up on a bill of exceptions.