The record-union., 1891-02-21
not involved in the disposition of this
appeal, DEHAyEN.sJ

/ dppGsSl.
| [FIled February 10, 1891.
Appeal from Superior Court of Santa
Clara eounty-John Reynolds, Judge.
For appellants. Frank NJ. S. Stone.
respondent, Charles b. Younger.
DEPARTMENT ONE.
In TIE MATER OF THE
ESTATE OF No. 13, ,O62 p
| WIN. H. MOORE, Deceased.
/ The special administrators of William
! II. Moore, deceased, having filed her final
account for settlement, the heirs of the
| decedent filed objections to the allowance
! OF certain items therein, and the court.
after hearing the parties thereto, settled
the account by allowing number OF the
items objected to, and Gisallowing the re-
nainder From this order the heirs have
appealed to this court.
The chief objection to the action of the
/ court is its allowance for certain eXpen-
ditures in the repairs of the Pacific
! Ocean House. Prior to making these re-
pairs the special administrators had OBJ
tanned an order from the Superior Court
allowing her to expend certain sum of
money for said repairs in which was des-
lgnated the particular repairs to be made,
and the amount allowed for each, and
which also declared the above amounts
being the fall costs Of repairs which said
administrative is authorized to make"
After obtaining this order she proceeded
with the repairs, and completed some at
less expense than she was authorized to
| make, while in others she expended more
than was permitted by the order; and
she also made otner repairs which were
! not included within the order; so that the
total amount expended by her was in ex-
I cess of the amount allowed by the order
1t is urged by the appellants that the
court was not authorized to allow any
items i'll her account for expenditures
which were not embraced within its pre-
vious order allowing her to make the re-
pairs.
The Office and duties of a special adj
mlnistrator are very similar to those of a
receiver in equity. Each is appointed by
the court TO take charge under its direc-
4 tlons OF property In litigation, or which
IS involved IN the proceedings before it,
with view to its care, and preservation
for the parties to whom the court may
ultimately decide that it belongs The
powers and duties of each are special and
limited TO such as are defined by statute.
or expressed in 5he order of his appoint
| ment, or which he may from time to time
receive for the purpose OF more effectu-
ally preserving the estate intruSted to his
/ charge. If It becomes necessary during
| his management to make any repairs his
( expenditures therefor must be sanctioned
by the court appointing him, either by
ltpreVlouS order or by subsequent ap-
IfProval, before he cam reimburse himself
from the funds of the estate A prudent
! person would obtain from the court an
! order therefor before making such re-
! pairs, but 1t is not IN indispensable
| requisite that he should Go so. If he is
| willing to forego such protection, and to
rely upon his belief that the court will
ranfy his acts, there is no rule of law
which viii deprive the court of the power.
to reimburse him if his acts and expendi-
! lures are approved. In Tempest VS.. Ord.
Tar- ~ L 4. 81 ~
eriy the court never permitted q receiver
to lay out money without previous or
! der OF the coilrt, but now, when the re-
| celVer haG laid out money without such
! previous order, ii was usual to refer it to
| the Master to see if the transactions We're
| beneficial TO the parties, and if found to
be so, the receiver was allowed the mon
ey so laid out" This rule was followed
Elin Adams VS.. Woods (15 Cal. 2O6) where
| the action of the District Court in disal-
| lowing. certain payments by the receiver.
on the ground that they had been made
! without any previous order of the court,
was reversed. (See, also, High on Re-
celvefs, Section $50; Hynes VS.. McDer-
mott, II DAILY 104)
We do not think thatthe items in the
! account of the special Administrative for
! the repairs made by her should be disal-
lowed merely because she had not OBJ
| tanned a previous order to make them or
because she had expended more than she
| was allowed. 1t was quite as competent
! Tor tAe court TO approve her disburse-
inents for repairs -nlada-Without,a a previ-
| Gus order as it was to order in advance
that the repairs should be made; and if it
was competent for the court to allow the
! items nj her account without a Dreyious
order having been obtained therefor. il
was equally competent TO allow such re-
pairs as she might have made in excess of
the amount allowed by the order. In
nfhpr fDn rSf
! neither under ali the circumstances the
I apalrS were necessary, and the expendi-
/ ares reasonable. These matters must of
! necessity be left to the discretion of the
Judge in settling the account, and unless
| 1t appears that such discretion has been
abused, it is not subject to review. The
court IN the present case heard testimony
| offered by the respective parties in refer
ence to the contested items, and after ex-
amlning 1t we cannot say that it was in
sufnclenG to support his order. Neither
| can we say that the court improperly
allowed the items for the expenses of a
! horse and buggy, which We're objected to
/ by the heirs. For auSht that appears in the
/ record they were expenses necessarily
incurred IN her management of the es-
tate. &C.. c. p. Section 1861
! Appellants also object to the allowance
TO the special administrators of commis-
! SlonS upon the estate that came into her
! hands. The Code of Civil Procedure does
| not make any special provision for the
| compensation OF special administrator.
| but leaves 1t 70 the discretion of the court
! IN the Sett. ement OF his account. We
cannot say that it was improper for the
| court to take the, rate of compensation
hXed by the statute for an administrator
as the standard for determining a proper
allowance to be made to the special adj
nlnlstratriX IN the present case. To the
! objection that by this course an estate
may be subjected > the payment of
double commissions, it is Sufficient to
say that the court having charge of the
estate has the power to prevent any i'm
| pToVloent diversion of its funds during
/ administration.
The order appealed from is affirmed.
concur: -
GARoUTTE, J.
CoSCURRINGf OPINION
L concur. Some of the items in the ac-
count seem on their face to show AN at-
/ Tempt to improve the property, rather
than TO preserve ii; but as the witness
Cope testified that all the work done WAS
necessary to put the house in tenantable
condluon, and as there is no evidence to
| the contrary, except an inference which
may arise from the apparent nature of
the work done, it cannot be said that the
| orcer OF the court is not supported by the
| evidence.
think the burden of proving the ne
cessity of the expenditures rested upon
| the administrators as to all items Objected
10, ana II all the evidence introduced is in
the bill the court ought to have rejected
the Item OF buggy hire. The bill, how
ever, does not purport to contain all the
evidence introduced. and il it did. the
Item referred to is so small that coun-
! sci for appellant would not desire a re-
versal or modification on account of an
| error as to it alone PATTERSON. r
Filled Eehr1arz 70 1901