Sweitzer v. Withington

BARNARD, P. J. This is another appeal in the estate of Carl Withington, in which a decision involving the final account of the executor was this day filed. (Estate of Withington, No. 2893 ante, p. 87 [140 P.2d 482].) This appeal is from an order removing Callie Belle Sweitzer as administratrix with the will annexed of said estate.

Harriet LeMay died on April 15, 1942, leaving all her property to Callie Belle Sweitzer, who was appointed administratrix of her estate. She was also appointed administratrix of the Carl Withington estate. In August, 1942, the wife of Lysle Withington, to whom he had assigned all his interest in the estate of Carl Withington, filed a petition asking that Callie Belle Sweitzer as the administratrix of the Withington Estate be required to cite herself as administratrix of the estate of Mrs. LeMay to render a full account of all moneys, rentals or property received by Mrs. LeMay during her lifetime which belonged to the estate of Carl Withington. An objection to this petition was sustained on the ground that jurisdiction over the acts of Mrs. Sweitzer, as administratrix of the LeMay estate, is in the probate court of Kern County where that estate is pending.

Thereafter, another petition was filed seeking the removal of Mrs. Sweitzer as administratrix of Carl’s estate. It was alleged, among other things, that Mrs. Sweitzer was represented by the same attorneys in her separate capacities as administratrix of Carl’s estate, as one of the beneficiaries of that estate, • as executrix of the will of Norma Withington who had also died, as sole beneficiary of that estate, as administratrix of the estate of Mrs. LeMay and as sole beneficiary of that estate; that Carl’s estate has a claim for rents, issues and profits against the estate of Mrs. LeMay; that Mrs. Sweitzer, as administratrix of Carl’s estate has failed in and has no intention of, proceeding with the enforcement of this claim against Mrs. LeMay’s estate, which is alleged on information and belief to amount to more than $20,000, exclusive of interest ; that this claim can be prosecuted and collected only by Mrs. Sweitzer in her capacity as administratrix of Carl’s estate acting against herself in her capacity as administratrix [107]of Mrs. LeMay’s estate; and that the various capacities of Mrs. Sweitzer are adverse and inconsistent.

At the hearing of this petition on September 4, 1942, the court pointed out that Mrs. Sweitzer, as the representative of Mrs. LeMay, was in the position of a trustee with respect to the Carl Withington estate; that she occupied conflicting and adverse positions in her various capacities; that it was to her personal interest to keep all property in the LeMay estate rather than have it turned over to the estate of Carl Withington; that her own statement in her affidavit in resistance to this petition disclosed that there could be no true adversary feeling in any type of litigation between her and the LeMay estate; that four months had gone by and no contingent claim had been filed by her against the LeMay estate; and that the time limit for filing such a claim was drawing near. The court then pointed out to Mrs. Sweitzer that she did not have to file a liquidated claim and that she could file a contingent claim so as to keep the LeMay estate responsible, whereas if she let the six months go by the claim might be lost. An order was then entered continuing the hearing and ordering Mrs. Sweitzer, as administratrix of Carl’s estate, to file, within ten days, a claim for any moneys which might be due or to become due to the estate of Carl Withington by reason of moneys or property belonging to that estate which had gone into the possession of Mrs. LeMay during her lifetime.