Hutchinson v. Dow

BRAY, J. After the decree of distribution was entered and after respondent appealed from certain portions thereof1 respondent petitioned the probate court for orders “(1) Directing Administratrix to satisfy and comply with the portions of the decree of final distribution which have become final, (2) Directing a further accounting by Administratrix, (3) For revocation of the Letters of Administration of Maxine B. Dow, heretofore issued, and (4) Appointing a qualified and disinterested Administrator with the Will Annexed.” Appel[70]lant appeals from the order dated September 7, 1955, issued on said petition. In that order the court “made certain findings and ordered Maxine Dow, forthwith and in all events on or before September 17, 1955: (1) as administratrix, (a) to pay to the persons named in the order the amounts set opposite their names [compensation for professional services rendered to the estate; each in the amount of the award, except that as to one person the amount was increased by $350 by way of compromise and dismissal of his appeal and as to another a reduction in the amount of $750 in response to his wish for prompt payment], aggregating $10,300; (b) to convey to Maxine Hutchinson, as devisee, her undivided one-half interest in the estate’s undivided interest in certain real property known as the Mayflower Mine; (e) to deliver to Maxine Hutchinson, 2,200 shares of the stock of River Farms Company, from the 4,758.5 shares held by the estate [partial distribution of the distributee’s one-half interest in all the shares awarded by the decree]; and (2) personally, not as administratrix, (a) to pay Maxine Hutchinson’s costs on appeal in 120 Cal.App.2d 296 [260 P.2d 970], and (b) to refund to the estate the money which she had paid out of estate funds in the appeal in 120 Cal.App.2d 296 [260 P.2d 970], Each of these directions to pay, convey or deliver pertained to an order or award which was no longer subject to appeal and had become final.” (Dow v. Superior Court, 140 Cal.App.2d 399, 405 [297 P.2d 30].)

Appellant contends in effect that an appeal from a portion of the decree prevents the carrying out of other portions until the appeal is heard. As the appeal stays only the portions of the decree to which it applies (see Dow v. Superior Court, supra, 140 Cal.App.2d 399, as to severability of the portions appealed from, from those not appealed from) and as no appeal was taken, the decree was in full effect as to the nonappealed portions. As to these it was the duty of the administratrix to follow the decree and deliver to the persons the property distributed or ordered paid by the decree. The order of September 7 therefore determined that these portions were severable from those appealed from. Appellant contends that in obeying the order by delivering to respondent her distributive share there might not be sufficient moneys accruing subsequent to the accounts settled by the decree to meet all obligations of the estate.