Russell v. Russell

CRAIL, P. J. This is an appeal by Louise V. Russell from an order settling her account as administratrix of the estate of John W. Russell, deceased, whereby she was charged, among other items, with the sum of $5,249.11, representing a bank deposit standing in the name of the decedent at the time of his death and large portions of which she admittedly converted to her own use.

John W. Russell died intestate on July 3, 1934, and on August 8, 1934, appellant was appointed as administratrix of his estate and continued to act as such until April 18, 1935, when her resignation was accepted and J. A. Somerville was appointed to succeed her. Mr. Somerville continued to act as administrator until October 21, 1936, when by order of court he was removed and his letters of administration revoked. On November 10, 1936, respondent Burdette J. Daniels was appointed as administrator of the estate and at all times since has continued to be and now is the administrator thereof. Prior to his death and on April 27, 1934, John W. Russell was adjudged incompetent, and the appellant was appointed as guardian of his estate.

At that time and at all times thereafter until July 2, 1934, the day preceding the death of the incompetent, there was on deposit in the Bank of America in the name of the incompetent the sum of $5,249.11. On July 2, 1934, the appellant withdrew this sum and deposited the same with the Farmers and Merchants National Bank in an account in the name of “Estate of John W. Russell, incompetent, Louise V. Russell, guardian”. The whole of said sum was on deposit in said bank at the death of John W. Russell on the following day. On November 18, 1935, the appellant, as administratrix, and J. A. Somerville, as administrator, executed under oath and filed with the court their joint inventory of the property and assets of the estate of said decedent, wherein it is set forth that the estate of the decedent consisted of cash in the sum of $5,528.67, of which sum $5,249.11 represented the sum on deposit with the Farmers and Merchants National Bank at the date of the death of decedent. This is the only inventory [105]ever filed in the estate proceedings. On the 5th day of December, 1935, J. A. Somerville, as administrator of the estate, filed his first and final account and petition for distribution, which purported to be a report of the administration of the estate by himself and his predecessor, the appellant, wherein he charged himself with the sum of $5,528.67 in cash, being the same sum set forth in the inventory, and after deducting certain credits to which he claimed to be entitled, alleged he had a balance on hand for distribution of $3,793.62. Upon the same day appellant, as guardian of the estate of John W. Bussell, incompetent, filed with the court her first and final account and report as such guardian, wherein she charged herself as such with various sums of cash aggregating $772.26, but not the said sum of $5,249.11 which, as before stated, was included in the joint inventory of J. A. Somerville and appellant in this proceeding. Up to this time and until ordered so to do by the court as hereinafter stated, the appellant had filed no separate account of her administration of the estate.