The herald., 1894-04-08
QUESTIONS DECIDED.
JUDGE CLARK HVRRIES THE
WINDING UP OLA CASE,
An Estate Which He Thinks Does Not
Gall for Prolonged Efforts on
the Part OF the
Executor.

Judge Clark yesterday rendered an
opinion in q probate case in which some
interesting points were considered in
regard to the settlement OF estates. In
the course OF the opinion he says:
upon the contest herein there are
but three questions remaining to be de.
decided.
First-The executor fled an accounN
entitled final account and also filed a
petition for distribution. At the hear-
ing, aud alter objection had been made,
he asked leave to withdraw the petition
and also the account as a final account,
and treat 1t as an annual account, claim
ing that the estate was net ready for dis
tribuuon. The only reason why IT ig
claimed that the adm iniatration should
not be brought to close ia to be found
in the terms of the will. To Eva Brock
ett is devised lot of land, being lot 2,
block F, OF the Thomas tract; to Clar-
ence Blockest another lot in aaid tract.
and to Hosea X. Brockett still another
lot in aaid tract. Tho will provides that
said devisees shall not be put in posees-
sion of the lots SO devised until they
shall respectively arrive OF tie age OF
% years: that il either one OF said
children shall die before arriving at
that age the lot devised to such deceased
child shal be sold and the proceeds di.
vided between the survivors; II two of
said children shall die before reaching
that age the lots devised to them shall
be sold and the proceeds 20 the sur
vivor, and il ali three shall die
before reaching the age OF 23 oil the lots
so devised shall be cold aud the proceeds
~ lot for N nrtn I'D nf
and the interest paid one.hAlf to Emmett
O. Brockett and one-hai to Mary Brock
EFT. There il nothing, think, In these
provisions of the will that would require
that the general administration ot the
estate should continue. IL would seeIa
that 1t was to mees and provide for such
o condition or contingency that sections
1899 to 1903, code of civil procedure.
were enacted. and can SEQ reason
why proceedings cannot be had and the
administrator brought to n close under
the provisions OF those sentienH.
Seeond-A ''street assessment" OF
$l37 was levied against lot specifically
devised. This the executor allowed to
90 delinquent, having money in his
hands belonging to the estate and the
psnalty amounted TO $75. Tae devisee
10 whom tho lot was devised advanced
the 1912, and 1t 10 now claimed that the
executor should charge himself with
that amount in his account. The l do
not think to be 80. Admitting that it
ia the duty OF an executor to pay all
taxes and that no distribution can be
had until this ia done (C. G. p, 1893.
Pol. O. 1852, yet where different par
cells OF land arc specifically devised, each
parcel should bear ite own burden, and
1t is incum bent upon the devisees to sea
that tho executor is reimbursed for all
taxes paid thereon. Upon their refusal
he has his remedy by application Tor
sale. Estate OF Morgan Myricks, Pro-
bate Reports, page 80.) Here, had the
executor paid the assessment Of Sl37, he
would have been entitled, and it would
have been his duty, 10 recover 1t from
the devisee, 4 va Brockett, bafOre dietri-
button. IL is true that had he paid the
penalty Of $75 from the funds OF the es'
tate he would not have been entitled to
credit therefor in his account, but 1t
doee not follow that he should charge
himself with the money received from
said devisee, in his accounts as execu-
tor. The money was no portion ct the
estate of decedent.
Third-Excsption is taken to the
amount OF the commissions claimed by
the executor. On the part OF the exc.
cutor il is contended that he is entitled
to commission on the amount 5i the
estate accounted for on the basis OF the
valuation shown by the inventory and
appraisement; that the appraisement Is
conclusive as to value. While 1t is the
duty of an executor to take into his
possession all tina estate OF the decedent
and make and return true inventory
aud aPpraisenient, and Is chargeaple In
his account with tho whole oi the
estate that comes into hia possession a5
the value OF the appraieement contained
in the inventory, except that he 10 not
permitted to make a profit by the In
crease or euffer loss by the decrease or
destruction without his fault, 20. q. r.,
sections I443, 1851. 1913, 16l4), yet this
does not mean that the inventory and
appraisement shall be conclusive either
for or against the executor, either OF
the amount OF the estate accounted Tor
or its value. Appraisers are appointed
and act ex parte and to hold their acts
to be conclusive might deprive persons
| interested. as heirs and devisees, OF
rights of property without giving them
an opportunity 10 be heard. 1t
has been the ruling of this
court that the apprsisement is
prima facie evidence OF the value only.
and such was the ruling OF
Coffey, Judge, in re estEte of Love. See
syllabi Of Judge Cotfsy'd decinions, page
q. Aud Ia the opinion in the case OF es-
tate OF Simmons, 43 CAL, 548, cited by
executor, it is said, 1T does not follow
ia any case that the appraisemsnt on
file is necessarily to constitute the basis
upon which the compensation is to be
allowed. The inventory may or may
not afford basis of calculation for the
purpose OF allowance OF commissions
upon the property taken into possession
and accounted for; but If resorted to in
making such allowance 1t cannot in any
case amount to more than prima facie
evidence OF value, and the value should
be left open to inquiry. If the inven.
| t1ried value be not satisfactory to all
plrties concerned" 1t iH ordered that
| thia aatata ha niacad on DroDaE0 calen-