Jones v. Robson

DORAN, J. The appellants, children and heirs of the decedent, are here appealing from an order authorizing the executrix to compromise a claim for the wrongful death of Minnie V. Siberell, who was killed in an automobile accident in Kern County at the Grapevine station on the Ridge Route, August 25, 1951. The action for wrongful death was consolidated for trial with a separate action for damages instituted by decedent’s daughter, Daisy Bishop, and Mrs. Bishop’s daughter, Marilyn, who were also injured in the accident.

[333]The cases were tried before a jury which returned a verdict for the defendants. Subsequently a new trial was granted as to the defendant G-rinestead, the driver of the other automobile. Mrs. Siberell’s estate which had been closed before trial of the accident ease, was then reopened and the previous executrix, Martha E. Jones, reappointed.

Pending the new trial, settlements were reached with respect to the Daisy Bishop case and that of Marilyn Bishop. Daisy Bishop recovered $3,000 and Mrs. Bishop’s daughter Marilyn was given $8,000. The wrongful death case with which this appeal is concerned was settled with the court’s approval for the sum of $2,500. The order of approval allowed counsel fees in the sum of $1,000, and reimbursement for costs expended, $687.94. The remaining sum of $812.06 was apportioned among decedent’s six children, each of whom received $135.35.

The first issue raised in appellants’ brief is: “Where it appears on the face of the record that an executrix did not come into the State of California to qualify, does the Court have jurisdiction to act upon her petition to compromise a claim 1 ’ ’ Upon the reappointment of the executrix, it appears that the petition to reopen the probate estate, the petition to compromise the claim, and the letters testamentary were sworn to before an Oregon notary.

As pointed out in the respondent’s brief, appellants did not raise this point in the probate court by seeking to have the respondent’s letters revoked for failure to take a proper oath. And, as further noted, Martha E. Jones had previously been appointed executrix but had been discharged prior to trial of the personal injury case, and the reissue of letters testamentary for the purpose of having a proposed compromise approved was a mere technical detail necessitated by the previous discharge.

In Dominguez v. Galindo (1953), 122 Cal.App.2d 76 [264 P.2d 213] where a defendant in a personal injury action raised the defense of the failure of the administrator properly to qualify, the reviewing court quoted from Bank of Commerce & Trust Co. v. Humphrey, 41 Cal.App. 552 [183 P. 222]: “The authority of the Court to appoint does not rest upon the oath or bond. ... If the clerk of court issues the letters in violation of statute, without requiring the proper oath, any person interested may appear . . . and ask to have the letters revoked. But to allow every person who may be sued to go behind the letters of administration and object