Walcott v. Cramer

STURTEVANT, J. This is an appeal from an order settling the fourth annual account of the executrix of the estate of the decedent. The decedent left an holographic will. It is very long and need not be set forth at length. Among other provisions it contained the following: “I give, devise and bequeath, to my sister Mrs. Nellie. Kelleher. my House, and Lot. and all improvements, there on. Lot two. Block 4088 on hampshire Street. San Francisco. California, to be hers for Ever.

“ Second I give, devise and bequeath to Mrs. Lillian. Marie. Cramer. My. House, and Lot. and all improvements thear on. Lot 8. Block 4. San Rafael. Marin County. California, to be hers as long as she lives, and on and after her Death, then it shall be the property of John William and Helen Margaret. Cramer, share and share a like, to be thears for Ever. Mrs. Lillian M. Cramer shal keep the improvements repaired and all Taxes Paid, for use of the same, it shall not be sold or Mortgaged, during her life.”

The will named Mrs. Lillian Marie Cramer as executrix. After the death of the decedent Mrs. Cramer applied for and letters testamentary were issued to her. She duly qualified and since then she has continued to act as executrix. On the 19th of August, 1938, she filed her fourth annual account. It may be noted that at the time of the death of the decedent and ever since then Mrs. Cramer and her family have occupied the house and lot designated as Lot 8, Block 4 in San Rafael, Marin County, California. In the said account the executrix did not charge herself with interest on the value of said premises nor for rent for the use of said premises. But she did charge the estate with all taxes levied thereon and the cost of fire insurance. Said account covered a period commencing June, 1936, and extended down to August, 1938. Anna Walcott, executrix of the last will and testament of Nellie Kelleher, deceased, appeared and filed written objections to said account. Said objections were as follows:

“1. That said executrix has failed to charge herself with rent for the real property of said estate situate in the County [427]of Marin, State of California, nor has she charged herself with a reasonable value of the use and occupation of said premises.

“2. That said executrix has not charged herself with interest in the legal rate upon the amount due to the estate for the reasonable value of the use and occupation of the Marin County real property of said estate.