Rodgers v. Schlegel

KERRIGAN, J. This is an appeal from an order settling the final account of an administrator.

Shortly after the death of John Peter Miller, special letters of administration were issued upon his estate to L. L. Fargo. Thereafter, on April 12, 1907, general letters with the will annexed were regularly issued to S. C. Rodgers, the public administrator of Santa Cruz county, in the superior court of which county the settlement of the estate was pending. In due course the administrator filed his final account and petition for the settlement thereof, which account was in due course approved as rendered. Thereafter a motion, made under section 473, Code of Civil Procedure, by certain absent heirs and legatees, to set aside and vacate that order was granted. Subsequently, upon second hearing of the administrator’s account, and objections thereto filed by said heirs and-legatees, said account was settled as presented, except as to the administrator’s commission and the fees of his attorney; that is to say, the court deducted from the fees and commissions allowed by law to the administrator and his attorney a sum equal to the fees and commissions which it had theretofore allowed the special administrator and his attorney; ■and also disallowed two items of $150 each charged by the administrator and his attorney respectively for special services alleged to have been rendered by them to the estate. The court further ordered that the administrator be finally discharged upon paying over to the respective legatees or their attorney the residue of the estate in his hands as shown by the account thus settled.

The appeal is by the administrator, and he contends, first, that the court erred in setting aside and vacating his account; second, that it also erred in reducing the amount of commis[559]sions and fees charged by him and his attorney for their general services in the settlement of the estate; and, third, that the court erred in disallowing the two items of $150 each charged for special services by him and his attorney.

First, as to the order vacating and setting aside the first order settling the administrator’s account. We cannot hold with the contention of appellant that this order was erroneous, because made upon an insufficient showing. In such a matter much is left to the discretion of the trial court; and in view of the evidence offered upon the motion and admitted without objection, consisting of letters from the legatees residing out of the state protesting against the allowance of the account, the affidavit of their attorney, and the files and records of the estate, we are not prepared to say that the court abused its discretion in setting aside the said order.