Vasiljevich v. Radanovich

THE COURT. Defendant George Eadanovich and Ognjen Bukvich, deceased, were during the latter’s lifetime engaged in the purchase and sale of real property in Los Angeles County. Bukvich died on July 20, 1926. At that time the record title to portions of two lots stood in the names of the partners. A portion of one of the lots had been sold by them to one Sotere, and the balance of the purchase price was collected by and remained on deposit in a Los Angeles bank at the time of Bukvich’s death. Eadanovich claimed certain amounts alleged to have been advanced by him for taxes, assessments, material used in filling in one of the lots and also for his labor in the latter connection. Letters testamentary upon the estate of Bukvich were granted to plaintiffs on April 26, 1927. Later they requested an accounting from said defendant, and on August 27, 1927, a citation was issued by the probate department of the superior court, requiring him to show cause why such an accounting should not be made. Following this defendant filed an account, to which objee[99]tions were filed on January 25, 1929. On the same day the present action for an accounting was commenced.

After a trial the court found the sum of $544.84 to be on deposit as stated, and that defendant was entitled to credit for certain of his claims against the fund. It also found that the partnership was not indebted. Judgment was entered, by which .it was decreed that defendant was entitled to $424.60 payable out of the above fund, and that plaintiffs were entitled to $120.24. It was also decreed that defendant and the estate of decedent were the owners of the lots mentioned, each having an undivided one-half interest therein.

Plaintiffs, who have appealed, claim that the estate should have been allowed a personal judgment against defendant for the value of the lots rather than for an undivided half interest therein. They base this upon the contention that it was defendant’s duty to sell the lots and account for the proceeds, and that he failed to use due diligence in that respect or to account without delay as provided by section 1585 of the Code of Civil Procedure (now sec. 571 of the Probate Code).

The evidence shows that the defendant was a carpenter by trade, was unable to read or write English and required an interpreter; also that there was considerable negotiation between the defendant and the executors before suit in an endeavor to adjust the differences between them. Owing to the fact that the property stood of record in the names of both partners, co-operation in malting any transfer was necessary; and while there was no evidence that defendant procured offers for the property he testified that he endeavored to sell it, but was unable to do so. Defendant appears to have had little business experience, and the record contains nothing which would compel a finding that he fraudulently delayed a sale or was guilty of bad faith, nor did the trial court so conclude.