Cronan v. Cummings

BISHOP, J. pro tem.* This is an appeal by “objectors” Muriel Cronan and Frances Seger, from an order overruling their objections to and settling the first account current of the executrix. No record of the evidence or of the oral proceedings taken at the time of the hearing is brought to us, and without it we would hesitate to reverse the order. As we are persuaded that the order should be affirmed, even with the facts as appellants contend that they are, we are not questioning appellants’ recitals.

We find that a will was admitted to probate, fashioned by the inexpert hands of the decedent whose name gives the title to this case. In the will, as we read his handwriting, are these, among other, provisions:

“To whom it may concern

“2d In case of my death I would like the following course to be carried out ....

“Any and all real properties to be disposed of to the best advantage and the proceeds divided as follows—

“Except that any and all personal property and the furniture and fixtures & house hold goods of the Apartment shall become the sole property of my wife, Frances .... “One half (%) of the proceeds of my estate to go to my wife Frances— * * *

“One third (%) of the balance or other half to go to my brother or his heirs Harold 0. Cummings— * * *

“All or any rents or income from my properties to be the immediate property of my wife Frances and to be used [803]by her in any manner she may see fit, without giving an account of same—and said rents or income not to be considered as a portion of estate as shown above. ’ ’ (Emphasis that of testator.)

In the order of January 28, 1957, admitting the will to probate, appears a recital that the will was filed with the court on the 7th of that month. We are assuming that the testator’s death did not occur after that date. The executrix, widow of the decedent, filed her first account current and report, December 7, 1959. In it she reported, among many other items, that she had received rents totalling $358.26 before January 7, 1957, and over $6,000 after that date. Her account reports no disbursements before March 1957, so that the total amount of $3,406.45 reported by the executrix as having been paid by her to herself, was disbursed between March 1957 and December 5,1959.