IN RE: GRIVEL'S ESTATE.†

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District Court of Appeal, Second District, Division 1, California.

IN RE: GRIVEL'S ESTATE.† GRIVEL v. WARDLAW.

Civ. 11186.

Decided: February 24, 1937

Sherman Anderson and Guy Richards Crump, both of Los Angeles, for appellant. Edgar T. Fee and Franklin J. Cole, both of Los Angeles, for respondent.

The decisions of the Supreme Court in this same estate, entitled Matter of the Estate of Grivel, Deceased, appearing in 199 Cal. 351, 249 P. 184, and in 208 Cal. 77, 280 P. 122, and the decision of this court in the same estate appearing in 128 Cal.App. 186, 17 P.(2d) 172, reference to which decisions is hereby made, make unnecessary a statement in detail of the matters which have already been determined. The issue left undetermined by these decisions is that which relates to the accounting for 271 bales of cotton. In fact, it was so conceded at the time of the hearing in the trial court. As we see it, there is no need to discuss any of the questions raised, except as to the propriety of the order made by the trial court relating to these bales of cotton.

The trial court found that Charlie T. Wardlaw, the deceased administrator with the will annexed, received said bales of cotton during his lifetime and while he was acting as administrator with the will annexed of the estate of Rene Grivel, deceased, and the order of the trial court from which this appeal is taken charges John R. Wardlaw, as administrator of the estate of Charlie T. Wardlaw, deceased, on his supplemental and amended account with the sum of $17,500 with interest, and decrees that “said sum is chargeable against the Estate of Charlie T. Wardlaw, deceased, and against his sureties as Administrator with the Will Annexed of the Estate of Rene Grivel, deceased.”

Appellant claims that the findings of fact do not support the conclusions of law or the judgment that Wardlaw, as administrator, or otherwise, came into possession of any property of the Grivel estate in the form of cotton, or the proceeds from the sale of cotton, and contends that the findings conclusively show that the cotton received by Wardlaw was at all times until sold the property of the partnership of Grivel and De Nancy and not the property of the Grivel estate.

Any property of a deceased person which comes under the control of his administrator, while he is acting as such, even though the property belongs to a partnership of which the decedent was a member during his lifetime, must be accounted for by such administrator in the course of his administration of such estate.

Those portions of the findings of fact made by the trial court which are material to the question here involved are as follows:

First: “That Charlie T. Wardlaw, during his lifetime and while he was acting as administrator with the will annexed of the Estate of Rene Grivel, deceased, received and came into custody as such administrator of 271 bales of cotton, which were the property of Rene Grivel and Henri De Nancy, a partnership.”

Second: “That Henri De Nancy, as surviving partner of the partnership of Grivel and De Nancy, entered into an oral agreement with Charlie T. Wardlaw, as Administrator with the will annexed of the Estate of Rene Grivel, deceased, who was also at that time the general manager of the Colorado River Land Company, in which it was agreed that De Nancy would deliver to Wardlaw, administrator as above stated, every alternate bale of cotton harvested from the partnership sub–lease subsequent to the death of Grivel, without charge for picking, hauling, ginning or pressing, and that Wardlaw would accept such delivery of each alternate bale of cotton so harvested and delivered as full payment of land rentals owing the ‘Long Ranch’ and/or their lessees or landlord, and also that out of said cotton the said Charlie T. Wardlaw, Administrator, would satisfy in full the note of $17,500 owing the Globe Oil Mills Company, a corporation. That said oral agreement was performed by Henri De Nancy, by the delivery of 251 bales of cotton to O. G. Hopkins, pursuant to instructions given by Charlie T. Ward law. That Charlie T. Wardlaw procured the delivery to himself as such administrator with the will annexed, an additional 20 bales of cotton belonging to the partnership from the Globe Oil Mills Company, a corporation, who were then holding it for the account of the partnership, upon the assurance of Charlie T. Wardlaw, Administrator, that he would pay the partnership note of $17,500.00, from the proceeds of the sale of the partnership cotton.”

Third: “That 271 bales of cotton, the property of the partnership of Grivel and De Nancy, so coming into the hands of Charlie T. Wardlaw, as Administrator of the Estate of Rene Grivel, deceased, were pursuant to his instructions shipped in his name and sold on the New Orleans market on or about the month of March, 1919, for a total net return of $39,906.00. That said monies were deposited in the First National Bank of Calexico, California, in the name of O. G. Hopkins.”

The findings then proceed to show that neither the decedent Grivel, nor the partnership of Grivel & De Nancy was indebted to Hopkins, and that De Nancy dealt with Hopkins as the agent, employee, and representative of Charlie T. Wardlaw, administrator; that none of the proceeds of the sale of the partnership cotton was applied to the payment of the $17,500 note or rentals owing the “Long Ranch,” but that the whole of said sum of $39,906 was paid out by said Hopkins to other persons and for other purposes, “all with the full knowledge and consent of Charlie T. Wardlaw, all of which was in violation of the agreement of said Charlie T. Wardlaw, with the said Henri De Nancy, surviving partner of Grivel and De Nancy, co–partners.”

It was further found that the Globe Oil Mills Company brought suit against Henri De Nancy to enforce collection of the partnership note in the sum of $17,500; that judgment was recovered by the plaintiff in said action, and the sum of $13,587.19, the property of the partnership of Grivel & De Nancy on deposit in certain banks, was attached and applied on account of said judgment indebtedness. No creditors' claims for rentals owing, or for or on account of said promissory note for $17,500 were ever filed by “Long Ranch,” Colorado River Land Company, or the Globe Oil Mills Company, in the matter of the estate of Rene Grivel, deceased.

The evidence adduced at the trial of this action was conflicting. However, there was sufficient evidence to support each of the findings criticized by appellant. The findings are sufficient to support the “order and decree” rendered; therefore, the “order and decree” appealed from is affirmed.

YORK, Justice.

We concur: HOUSER, P. J.; DORAN, J.