Ettlinger v. Marx

WARD, J. This appeal involves an order refusing to set aside an order approving an assignment by Clare Ettlinger [495]of a residuary interest in the estate of Isaac L. Ettlinger, deceased, pursuant to Probate Code, section 1020.1. Clare Ettlinger, the appellant, is the decedent’s widow. Under his will she received a “home on Austin Avenue, Atherton, California,” and a one-fourth share in the residue of the estate. The testator’s nephew, Melville Marx, was appointed executor and received letters testamentary. A prior wife, Millieent Sears Ettlinger, held a property settlement entitling her to $250 per month until she should remarry or die.

Following the filing of a notice of motion for an order approving an assignment, a hearing was held at which Clare Ettlinger testified that by a recent order of distribution she had received certain property in accordance with the terms of the will; that Millieent Sears Ettlinger had been in receipt of $250 a month and that in the probable course of events she would continue to receive that amount for “some 18 or 20 years”; that this probably would reduce Clare Ettlinger’s income to “rather a nominal” sum; that she had been advised by her counsel that it would be to the best interest of the witness to sell all of her interest in the estate; that she had “also employed an auditor and a certified public accountant, who has done considerable work in connection with the books of the estate of Ettlinger, and the books of the Rio Farms Corporation, and he has submitted to you a complete analysis of holdings both of the estate and of the Rio Farms Corporation, and you have had the benefit of analyzing those and consulting personal friends of yours, besides the advice of counsel”; that $25,000 net had been offered by Hattie Straus and Gertrude Marx for her interest, from which certain attorney fees would be deducted. The following evidence also appears in the record: “ Q. And you appreciate that when you have effected the assignment and have accepted the money payment that it calls for, that you will have then surrendered and finally parted with all of your right, title and interest of every kind and character to this estate? A. Yes, sir.” Whereupon the court on October 22, 1946, approved the assignment and allowed a distribution of $1,000 to the residuary legatees and the widow’s assignees.

The executor subsequently filed the second and final account and petition for final distribution, which named the assignees of Clare Ettlinger as the persons entitled to receive her interest. On October 11, 1947, opposition to the Final Account and Distribution was filed by Clare Ettlinger, who claimed that the assignment of her interest “is unfair, unjust and