Norma v. Edwards

California Court of Appeal Jun 27, 1939 No. Civ. No. 12171-SPublished

Before: York

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Holding. An executor appointed under a will later revoked by the discovery of a subsequent will is entitled to compensation for services rendered in good faith prior to the revocation of their letters, as the appointment was voidable rather than void ab initio.

Issues

Whether an executor's appointment under a will later revoked by a subsequent will is void ab initio or merely voidable.
Whether an executor whose appointment is revoked is entitled to compensation for services rendered and attorney's fees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the instant case, respondent was named executor in the first will, and his appointment as such executor before the subsequent will was filed for probate, in the absence of a showing of bad faith on his part, was not void ab initio, but voidable”

“The fact that the authority of an executor has been terminated by the revocation of his letters or of the probate of the will does not affect his right to compensation for services previously rendered while acting in good faith.”

YORK, P. J. On December 2, 1936, the court made its order admitting to probate the purported last will and testament of Annette Norman Clark, deceased, dated November 15,1935, and directed that letters testamentary issue to respondent Edwards, named therein as executor. At the time said order was made, there was in existence another will which was executed on October 8, 1936, by said decedent while she was in England and where her death thereafter occurred. On March 11, 1937, an order was duly made vacating and annulling said order of December 2, 1936, whereupon appellant qualified as administrator with the will annexed and proceeded to administer the estate, pursuant to the terms of the subsequent will. On November 22, 1937, the respondent filed his first and final account and petition for discharge, praying for approval thereof and for allowance of fees for his services rendered as executor under the first will, as well as compensation for his attorney. Appellant filed exceptions and objections to said account, particularly with reference to such allowance, alleging that respondent on December 2, 1936, stated to the court that the will of November 15,1935, was the last will and testament of decedent, although said respondent had been informed by appellant that “there was in existence a will dated October 8th, 1936, and well knew of the existence thereof, and fraudulently and falsely represented to the Court that there was no later will and testament than that of November 15, 1935, and that thereupon and upon said representations the Court in the above entitled matter erroneously admitted to probate the will of November 15th, 1935.”

[525]After hearing the account and objections thereto, the court on March 29, 1938, entered its order settling and approving said first and final account, allowing respondent Edwards the sum of $250 for his services as executor, and also the sum of $250 as compensation for his attorney, together with $28.80 costs.

In appealing from this order the administrator with the will annexed contends “that an executor wrongfully appointed by a void order, under a revoked will, is not entitled to any commission for his services as executor, nor reimbursement for his court costs, nor to an allowance for payment to his attorney for his services”, urging that “1. The original order appointing Mark H. Edwards was obtained in bad faith by virtue of misrepresentation to the court, and could not be the basis of a claim for fees and costs. 2. Even if appointment was secured in good faith, a void order of appointment gives no grounds for recovery of anything other than actual costs in the case, being $28.80.” As authority in support of his second point, appellant cites Estate of Frey, 52 Cal. 658.

Norma v. Edwards

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