Frazer v. Tracy

DESMOND, J., pro tem. This is an appeal from a decree, entered upon the settling of a final account, by which the probate court distributed to respondent all property remaining in decedent’s estate. It is filed by two brothers, Jacob M. and Edwin M. Frazer, the only heirs at law of the decedent, C. 0. Frazer, also known as Charles 0. Frazer. Two days before his death, Charles had signed his will in the presence of his brothers, in the following form:

“To whoever it may concern I hereby Thursday Sep 11 1937 I give one Alice A Tracy my House and lot 4 Block, G. Grider and Hamilton’s Vernon park in City of Los Angeles Cal as per map Recorded in Book 4 Page 79-80 For services Rendered in my late illness Providing my Funeral expenses are Paid

“C. 0. Fbazeb

“Witness: J. M. Fbazeb

Edwin F. Fbazeb”

Shortly thereafter, on September 23, 1937, Edwin offered this will for probate, was appointed administrator with the will annexed, and has acted as such ever since. In fact, [326]he appears in that capacity upon this appeal. On May 17, 1939, said administrator petitioned the court for an order confirming sale of the real estate mentioned in the will of Charles, reciting “That the main assets of said estate consist of the real property hereinafter described, and that there is not money sufficient to pay the expenses of administration, and that money is necessary for such purposes.” The order confirming the sale was made on June 5, 1939. The selling price was $700, and various expenses arising from the sale and amounting to $77.75 brought a net return to the estate of $622.25. The amount distributed to respondent was $25.70 more than that, namely, $647.95. It appears from this that prior to the sale there was on hand for distribution, or should have been, $25.70, with all bills paid. In other words, the effect of the sale was to divest respondent of any possibility of securing possession of this real estate which had been willed to her, and to incur charges in connection with the sale amounting to $77.75. The court, in passing upon a claim for extraordinary services performed in connection with the sale, disallowed fees of $50 each to the administrator and his attorney. We note also that the trial judge found, “that ever since the first day of May, 1938, the said administrator with the will annexed has represented to Alice A. Tracy that the estate needed from $100 to $300 in addition to assets of the estate other than the said real estate in order to pay the expenses of the estate and represented to this Court and to Alice A. Tracy that the estate could not be closed unless the said real estate specifically devised to Alice A. Tracy was sold and a part of the proceeds thereof applied to estate expenses ; that the said administrator . . . has never accounted to Alice A. Tracy for the money and property received and spent; that relying upon the said representation Alice A. Tracy agreed to the sale of the said real estate and made no objection to the sale thereof in the Court herein; that the said representation was false and untrue in that the said estate had sufficient assets which when added to the rental from the said real estate was sufficient to pay all the proper debts and expenses of the estate; that as a result of said false representations and the said needless sale unnecessary items of expense were incurred and the said sale and the services of said attorney and the administrator of the will herein in connection with the said sale were a disservice to the said