Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-08-28
IMPORTANT DECISION.
NEW TURN OF AFFAIRS IN THE
WILSON ESTATE CASE.
The Guardian of the Minor Ben.efi-
Charles Restored to His Office
of Executor.

Judge Van Fleet IN the Jane Wilson estate
restores the executor, w. c. Wilson, to his
office. from which he was removed BY
Judge Armstrong. The opinion reciles
very fully the grounds upon which the re-
moyal was made. The property consists
of bank stock, money and Z. s. bonds, of
the value of about $4,000, which was de-
posted in the Bank of Woodland. Upon
the removal of Wilson. the property was
ordered into the custody Of Geo. +. Bron-
ner. the then Public Administrator. By
the present decision the property will be
restored to the control Of Wilson, who is
the father and guardian Of two minor chill
dren, who are the sole benefciaries of the
estate under the will of their mother, Jane
Wilson. The proceedings to remove Will
son were instituted by J. Marion Brooks,
of Santa Barbara, who claims contingent
interest in the estate, depending upon the
death of the children before attaining the
age of majority. The decision of Judge
Van Fleet is as follows:
In the Superior Court of the State of
California, in and for the county of Sacra-
mento Department One.
In the matter of the estate of Jane Will
son, deceased-This was proceeding in
stituted in said Court to secure the removal
of W. C. W.ls)n as executor Of the last
will and testament of said Jane Wilson.
deceased, and the revocation of his letters
testamentaTy. The matter was tried before
nv predecessor, who filed findings of fact
and conclusions of law upon which he
predicated an order removing said execu-
tor from his trust. Notice of motion for a
new trial was given By Wilson and bill
of exceptions was duly settled by the trial
Judge, who thereafter and before said
motion had been brought to hearing, re-
tired from the bench. Said motion has
since been argued and submitted before
myself for determination.
The two substantive grounds of removal
upon which the order of the Court Is based
are stated in its conclusions OF law, which
are as follows:
From the foregoing facts the Court finds
as conclusions of law, that said w. c. Will
son should be removed from his trust as
executor of the last will and testament of
said Jane Wilson, deceased, because he
failed TO comply with the requirements of
the order of the Court made June 5, 1882,
set out in the finding OF fact herein and
because he has mismanaged said estate to
the injury thereof"
The respondent Wilson contends that
those conclusions and the order of removal
resting upon them are not sustained or
warranted by the facts found, and are
against law The finding of fact relied
upon by petitioners to sustain the first
ground of removal stated-that of the fail
ure of the executor TO obey an order of the
Courts finding six, which is as follows:
80 That thereafter, to wit, the 9th day
of June, 1882, said Superior Court of Sac
ramento county, after it had obtained juris-
diction of the matter of said estate and Of
the person of the said w. C. Wilson, as ex-
ecutor of the last will and testament of the
said Jane Wilson, deceased. made and
caused to be entered of record the follow
ing order in the matter Of the estate of Jane
Wilson, deceased 1t is hereby ordered
that the executor give bond in the sum OF
$50, 900 within twenty days, unless within
that time he cause to be filed and settled
final account But that the said Wilson
did not present or give or file bond as ex-
ecutor of the estate Of said Jane Wilson,
deceased, in the sum Of $4,000, or in any
other sum of money, within the time pre-
scribed in said order, or at any other time
and he failed and neglected 10 have settled,
within the time prescribed in said order, q
final or any account. But said w. G. Will
son did, on the 10Th day of June, 1882 file
in said Court an account as and for final
account, and did thereupon obtain an order
from said Superior Court of Sacramento
county appointing the Goth day of June,
1882, at the hour Of 10 o'clock A. NJ, and
the Courtroom of said Court in the city OF
Sacramento, in said county, as the time
and place for hearing and settling said ac-
count and he directed the Clerk of said
Court to give notice thereof by posting no
tees according to law, and such notices
were duly posted. On said 2Gth day Of
June, 1882, the hearing of said final &C
count was continued to the Sd day of July,
1882, upon motion of G. l.. White, Esq, at
torney for said J. Martin Brooks. TO enable
said Brooks to file his objection in writing
10 the settlement of said account. On said
ID day of July, 1882, said Brooks filed his
objection, ana the account was then heard
and by the Court then settled and allowed
That no other order of said Court than the
one above mentioned, of the 9TH day of
June 1882, has been made requiring the
said Wilson, as such executor, to give a
bond for the faithful performance Of his
duties rs such executor
In my judgment the facts recited in that
finding fall short of sustaining the conclu-
sion of the Court. In reaching that con-
clusion the Court must have entirely mis-
apprehended the legal scope and purpose
of the order rected in the finding, or it
could not have held that there had been a
failure TO comply with it on the part of the
executor The order, il will be seen, was
in the alternative and required Wilson. the
executor, to give bond in the sum of
$4,000 within twenty days, UlieSS within
that time lie cause to be filed and settled a
final account"
Now while no bond was fled by Wilson
under that order, the Court finds that Will
son did file his final account within the
twenty days and had it set for hearing at
as early date as was compatible with the
giving of proper notice. 1t is true the
finding shows that the account was not
heard and settled within the twenty days,
but it appears from the finding itself that
this was through no fault Of Wilson, but by
reason of Il continuance of the hearing
granted at the request of J. Marion Brooks
tone of the petitioners now seeking the re-
moval of said executor for the purpose OF
enabling said Brooks to oppose the settle
ment of said account. And it further ap-
pears that said account was thereafter in
due time heard and settled.
The Court seems to have proceeded III its
conclusion upon the theory that Wilson
was required under the terms of the order,
not only t. present his account within the
twenty days, but that he must at all events,
and without reference to any obstacles that
might arise to cause delay, have the ac-
count finally settled within that time. and
comply with the alternative and file bond
But certainly the order will not bear such
an Interpretation. 1t was one which it was
usual and proper to make in such matters.
and i is to be read and understood in g
reasonable sense, with view TO ascertain
the purpose it was intended to subserye,
and in the light thrown about it by our
knowledge and experience of the ordinary
course of judicial proceedings in like mat
tiers.
Now its evident purpose was, primarily,
to secure an early accounting by the execu-
tor OF the estate in his hands, and that in
the event an accounting was not forthcom-
ing within the reasonable time fixed by the
Court, then, and in that alternative, those
interested should be protected by requiring
at his hands bond-the record showing
that at that time the executor was serving
without bond, under the will. Had the
Court desired to make the bond the first OBJ
ject of the order it would, doubtless, sim
ply have ordered the executor to file one
as it was fully empowered to do, without
reference to the question of account.
Now, whenever the object aimed at by
the order was attained. then its REQUIRE
ments were satisfied. Here the finding
shows that Wilson had done all in tie
premises that it was within his individual
power to do toward a compliance with the
order What remained to be performed