Bank of America National Trust & Savings Ass'n v. Suden

NOURSE, P. J. The administrator with the will annexed and several beneficiaries under the will appeal from an order or decree of the probate court directing the administrator to distribute to the executor of the deceased widow of Andrew A. Brown her one-half community interest in the estate, and also directing the administrator to pay to such executor specified amounts in satisfaction of claims in behalf of said widow’s estate.

The facts upon which the order was based are fairly stated by respondent, and no substantial controversy is urged by appellants as to the evidence upon which respondent relies. Andrew A. Brown died testate on October 21, 1925, leaving surviving him his wife, Ada I. Brown, and no children. His estate consisted entirely of community property, and he so declared in his will. After provision was made for certain specific bequests, which are not involved in this controversy, the will bequeathed the residue to his wife in this language: “All the rest and residue of my property of whatever kind and nature, in ease my said wife, Ada I. Brown, survives me, I give, bequeath and devise unto my wife, Ada I. Brown, to have, hold, use and enjoy the same with full power to invest and reinvest and to dispose of the same in any manner she may see fit, and to enjoy the rents, issues and profits thereof and so much of the principal thereof as may be necessary for her support and maintenance, of which she shall be the exclusive judge, and as to which no account shall be required of her, for and during the term of her natural life, free from the control of all courts or other residuary legatees whatsoever. ’ ’

Provision was then made that if his wife survive him, the residue at her death of his one-half of the community property was to be placed in trust for the benefit of certain named nephews and nieces and of a sister of the testator. All of these nephews and nieces, and the heirs of said sister, since deceased, are the beneficiaries who join in the appeal.

The will of Andrew A. Brown was admitted to probate [578]in November, 1925, and Joseph 0. Atwood qualified as executor. He remained in that capacity until his death in 1937, when the Bank of America, one of the appellants herein, was appointed administrator with the will annexed. Mrs. Brown died testate in 1935, and the respondent herein qualified as executor under her will.

During the course of his administration, Atwood caused an inventory and appraisement to be made and filed showing a gross estate of over $200,000. He filed in due order his first four accounts and reports, all of which were duly settled, allowed, and approved. His fifth account and report was filed on September 11, 1935. Before it was settled one of the beneficiaries intervened to reopen and examine the four previous accounts contending that he had been a minor when these four accounts were settled and had not reached his majority until April, 1935. The probate court having denied him this privilege, he appealed to this court, and the order was reversed. (Estate of Brown, 24 Cal. App. (2d) 573 [75 P. (2d) 658].) However, the record does not disclose that he proceeded further in reference to the first four accounts, but it does appear that he joined with all the other appellants herein at the time of the settlement of the fifth and sixth accounts in expressly withdrawing all objections to the fifth and sixth accounts; and these were duly settled and approved on September 27, 1938, without opposition of any of the parties to this appeal. On December 1st following, the order of settlement was amended to show that objections had been made to one item of $1,873, and this item was withdrawn from the settlement.