Queirolo v. Ruhland

SHENK, J. Appeals from an order surcharging an account and allowing an attorney’s fee.

James E. Reade died intestate in 1945, leaving as heirs four daughters, two sons and two children of a deceased daughter. Olive Helen Ruhland, a daughter, was appointed administratrix of his estate. Thereafter she collected a death benefit of $2,654 from the Widows’ and Orphans’ Aid Association of the San Francisco Police Department but did not list this sum as an asset of the estate either in the inventory or in her first and final account. Her sister Mrs. .Queirolo filed objections to the first and final account, asserting that the insurance fund was an asset of the estate (see Prob. Code, § 927). Following a hearing oU the objections the court found that this sum had been paid to and received by Mrs. Ruhland as representative of the estate and that her individual claim thereto was without right. The court surcharged her account with the sum of $2,654 and ordered that it be included for distribution. The court also found that $500 was a reasonable fee to be awarded Mrs. Queirolo’s attorney for prosecuting the contest on behalf of the estate, the heirs and distributees, and ordered the administratrix to pay that sum from the surcharged fund. Mrs. Ruhland has appealed in her individual capacity contending that the evidence was insufficient to support the finding that the fund belonged to the estate, and as administratrix contending that the order allowing an attorney’s fee was beyond the power of the court to make.

The evidence disclosed the following:

James E. Reade had been a member of the Widows’ and Orphan’ Aid Association of the San Francisco Police Department for many years and carried a $3,000 death benefit certificate in the association. In May, 1942, two officers in the association called on Reade at his home in Kentfield for the purpose of having him execute a document designating the [671]beneficiary of his death benefit. Prior to their arrival he had filled in the form, making “Olive Helen Buhland, as Executrix of my will ...” the beneficiary. When the officers in the association told him that it was not necessary to say “as executrix of my will” in view of his declarations that day that the money was to go to Mrs. Buhland, Beade refused to strike the phrase and signed the document on May 23d, stating that he was making a will and naming Mrs. Buhland as executrix. There was no evidence of a subsequent valid will. Beade attempted to make a will on September 30, 1943, but it was denied probate because it was typewritten and not witnessed. Mrs. Buhland was therein appointed executrix to dispose of decedent’s property to the children in equal shares, save one to whom only $100 was bequeathed. The designation of the beneficiary, Mrs. Buhland “as executrix of my will” remained unchanged. The association authorized payment of $2,654 (the face amount less funeral expenses paid by the association) to “Mrs. Olive Helen Buhland, as Executrix . . . daughter and beneficiary of James E. Beade, deceased.” When Mrs. Buhland collected the sum she signed the receipt "Olive Helen Buhland, as daughter and Executrix of the will of her father . . . ,” and attached a certified copy of her letters of administration thereto. There was testimony at the hearing on her petition for letters of administration that Mrs. Buhland had expressly waived any personal right to the fund, but later she contended that she was entitled to it without accounting to the estate.