McKenna v. Roche

WOOD (Fred B.), J. During the pendency of appellants’ application to prove a will of Thomas R. Creely, deceased, which they alleged had been fraudulently destroyed, M. Cleveland Roche was appointed administrator of Creely’s estate. Some months later while appellant’s application to prove the will was still pending (see Swift v. Superior Court, *(Cal.App.) 235 P.2d 624, †(Cal.) 241 P.2d 217, and 39 [557]Cal.2d 358 [247 P.2d 6]), Roche filed his first account and report as administrator.

Appellants, as legatees under the destroyed will, filed objections to the following items of the account: (1) the administrator’s request for the allowance of his claim for $6,600 for services rendered decedent prior to his death, (2) a request for a finding that the loss to the estate of a certain automobile occurred without fault of the administrator, and for an order exculpating him from any personal liability to the estate in respect thereto, and (3) a request for the allowance of fees to the administrator’s attorney for ordinary and extraordinary legal services rendered.

In support of their objections, appellants alleged that “in the event said alleged fraudulently destroyed will is hereafter admitted to probate, affiant and said legatees hereinabove mentioned intend to, and will, contest each and every one of the . . . items hereinabove set forth; that, therefore, it would be injurious, damaging and prejudicial to affiant and said legatees for this Court to hear and determine said matters at this time and before the rights of affiant and said legatees, under said alleged fraudulently destroyed will, are determined. ’ ’

They invoked section 352 of the Probate Code which declares that if, before or pending an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, “the court may restrain the administrators or executors, so appointed, from any acts or proceedings which would be injurious to the devisees or legatees claiming under the lost or destroyed will.”

At the hearing of the administrator’s first account and report, appellants appeared by counsel and objected to the probate court hearing and determining any of the three items mentioned. The court stated that appellants had a right then and there to be heard. Their counsel took the position that they had no standing until after admission of the will to probate, saying “they have no right to come in here but they have a right to stop your Honor from passing upon those matters until the question of the lost or destroyed will is determined,” to which the court responded: “Let us hear the testimony.” The administrator then took the witness stand and was examined at some length concerning the various items of the account. Thereupon the court asked counsel for the appellants if he wanted to ask any questions. He replied