IN RE: ROBERTS' ESTATE.

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District Court of Appeal, Second District, Division 2, California.

IN RE: ROBERTS' ESTATE. STIEBEL et al. v. ROBERTS et al.

Civ. 14574.

Decided: December 21, 1944

Potter & Potter and Frank Rouse, all of Los Angeles, for appellants. Chase, Barnes & Chase, of Los Angeles, for respondents.

This is an appeal by legatees from orders settling the (1) amended second account current, (2) third and final account and supplemental statements thereto, and (3) decreeing distribution of the estate of Charles H. Roberts, deceased.

There are six questions presented for our determination which will be stated and answered hereunder seriatim:

First: Was there substantial evidence to sustain the trial court's findings as follows:

A.

‘That an Order was duly given and made herein on or about the 10th day of October, 1934, settling, allowing and approving the said Executrices Amended First Account Current on file herein, showing that said executrices were chargeable with property belonging to said estate in the amount of $31,407.62 of which the sum of 1,397.62 was in cash, and the balance of 30,010.00 represented the amount at which the real and personal property of said estate was accounted for.’

On October 10, 1934, the first account current of the executrices was approved and filed. This account showed that they were chargeable with property of the estate in the sum of $31,407.62. No appeal was taken from the order of October 10, 1934, and the same became final before the hearing on the present accounts.

The law is established in California that when an executor's account has been settled and the order of the court approving it has become final, it is conclusive against all persons interested in the estate, and items entered in such account may not be questioned in subsequent accountings or at the final accounting. (Probate Code, sec. 931; In re Estate of Marshall, 118 Cal. 379, 381, 50 P. 540; Security-First National Bank of Los Angeles v. Superior Court, 1 Cal.2d 749, 755, 37 P.2d 69; Sontag v. Superior Court, 1 Cal.App.2d 138, 141, 36 P.2d 140.)

Applying this rule to the facts of the present case it is clear that the order of October 10, 1934, constituted substantial evidence to sustain the questioned finding.

B.

‘That as shown by said Amended Second Account Current, said Third and Final Account and said Supplemental Statement thereto, said executrices have been and are chargeable with property belonging to said estate as follows:

Appellants' contention that the foregoing finding is erroneous in charging to the capital account (1) $220 for repairs to a roof of property of the estate, (2) $150 for hot water heaters for an apartment house belonging to the estate, (3) $950 for painting an apartment house of the estate, and (4) $446.07 for electric refrigerators for an apartment house belonging to the estate, is without merit.

(1) The record discloses that after various repairs had been made to a roof of a house belonging to the estate, it became necessary to remove the old roof and reroof the building. Such sum was properly charged against the corpus of the estate. (In re Jackson's Will, 135 Misc. 329, 239 N.Y.S. 362, 367; In re Griffith's Estate, 2 Pa.Dist. 191.)

(2) The record discloses likewise that it was necessary to install new hot water heaters in an apartment house belonging to the estate. Such cost was a proper item payable from the corpus of the estate. (Central Hanover Bank & Trust Co. v. Nisbet, 121 Conn. 682, 186 A. 643, 647.)

(3) The evidence discloses that the entire exterior of an apartment house, property of the estate, needed painting. Such item was not a regular annual or periodical expense. It was an unusual expense and therefore properly chargeable against the corpus of the estate.

(4) The installation of refrigerators was not an ordinary and recurring expense but an unusual and extraordinary expense and therefore properly chargeable against the corpus of the estate. (See Abell v. Brady, 79 Md. 94, 28 A. 817, 820; Evans v. Ockershausen, 69 App.D.C. 285, 297, 100 F.2d 695, 707, 128 A.L.R. 177.)

C.

‘That by a Final Order duly given and made herein on or about the 28th day of June, 1937, it was Ordered, Adjudged and Decreed that an undivided one-fifth (1/515) of all of the property, other than the parcel set aside absolutely as a probate homestead estate, of which the decedent died seized, or which his estate has acquired since his death by operation of law or otherwise, was and is the community property of the said Elizabeth Clare Roberts and said decedent Charles H. Roberts, subject, however, to the payment of one-fifth (1/515) of the debts of the decedent and the expenses of administration of his estate, and that subject thereto said Elizabeth Clare Roberts is entitled to have set aside and distributed to her upon distribution of said estate an undivided one-half (1/212) thereof, to-wit: an undivided one tenth (1/10110) interest in all of the remaining properties of the estate of said decedent for and on account of her community interest therein. It was further ordered, adjudged and decreed by said Order dated June 28, 1937 that an undivided four-fifths (4/545) of all of the properties other than the parcel set apart absolutely as a probate homestead, of which Charles H. Roberts died seized, or which his estate has acquired since his death by operation of law or otherwise was the separate property of said Charles H. Roberts, subject however, to the payment of four-fifths (4/545) of the debts of said decedent and of the expenses of the administration of his estate.

‘It was further ordered, adjudged and decreed by said order of June 28, 1937, that Elizabeth Clare Roberts, is entitled under the terms of said Last Will and Testament of said Charles H. Roberts, deceased, to the payment of the sum of Two Hundred Dollars ($200.00) a month for the rest of her natural life, from the date of the death of said decedent, to-wit: August 11, 1933, to be paid out of the net income received from nine-tenths (9/10910) of the remaining estate or property of said decedent; that said payments of Two Hundred Dollars ($200.00) a month are a charge upon the net income to any of the persons entitled to the corpus or principal of said estate, or to an interest therein; and that said bequest is a bequest of income.

‘That said Order further provides that upon distribution of said estate the following named persons are entitled to the following interests in the balance of said estate, to-wit: said separate property and the remaining one-half of said community property, subject to the said payments of $200.00 per month out of any income therefrom:

‘(a) Oliver J. Roberts, son of said decedent, is entitled to a life interest in an undivided five-twelfths (5/12512) thereof, and upon his death the remainder interest therein should be distributed to the children of said Oliver J. Roberts, if any, share and share alike;

‘(b) Ethel E. Stiebel, daughter of said decedent, is entitled to a life interest in an undivided three-twelfths (3/12312) thereof, and upon her death the remainder interest therein should be distributed to the children of said Ethel E. Stiebel, if any, share and share alike.

‘(c) The Children of Lottie Sims, a predeceased daughter of said decedent, to-wit: Blanche Sims O'Brien, Emma Sims Hauck and Charles Sims, are entitled to three-twelfths (3/12312) thereof, share and share alike.

‘(d) Earl J. Wherry, son of Maud Roberts Wherry, predeceased daughter of said decedent, is entitled to an undivided one-twelfth interest thereof.

‘(e) That in the event the remainder interest following the life estate to said Oliver J. Roberts, or the remainder interest following said life estate to Ethel E. Stiebel should lapse by reason of the failure of issue of said Oliver J. Roberts or of said Ethel E. Stiebel, the persons entitled to said remainder interest or interests are:

‘Elizabeth Clare Roberts as to an undivided one-ninth (1/919) thereof (the same being community property) together with an undivided one third (1/313) interest in the remaining eight-ninths (8/989) thereof;

‘Oliver J. Roberts, Ethel E. Stiebel, and the lawful issue of Maud Roberts Wherry and the lawful issue of Lottie Sims, an undivided two-thirds (2/323) interest in the remaining eight-ninths (8/989) thereof, share and share alike by right of representation.’

The foregoing finding is in conformity with the final order of the court of June 8, 1938, determining heirship, therefore such finding is amply supported by the evidence.

D.

‘That in order to pay expenses of administration, debts and other principal payments, it has been necessary for said executrices to use and apply the income receipts from said estate for such purposes. That the total amount of principal receipts or sums available therefor as of November 17, 1943 by the sum of $11,528.70 which sum has been paid out of the net income receipts of said estate which would otherwise have been distributable to Elizabeth Clare Roberts as hereinafter set forth. That in addition thereto certain additional principal expenditures will have to be made out of income cash on hand.’

The foregoing finding is fully substantiated by the evidence supporting the findings hereinbefore discussed.

Second: Did the trial court err in charging payment upon a note, secured by a mortgage on an apartment house belonging to the estate, to the corpus of the estate rather than to the income of the estate?

This question must be answered in the negative. The payment of principal items of debt against an estate are properly payable out of the corpus of the estate. (In re Estate of Dare, 196 Cal. 29, 42, 235 P. 725; In re Estate of Lair, 38 Cal.App.2d 737, 741, 102 P.2d 436.)

Third: Was respondent, Mrs. Roberts, required to make an election between her rights under the will of her deceased husband and her statutory community property rights?

This question must be answered in the negative. Decedent's will provided among other things as follows:

‘Firstly: After the payment of my just and lawful debts, I give, devise and bequeath to my wife, Elizabeth Clare Roberts, Two Hundred Dollars ($200.00) per month for her natural life out of the rents and receipts of my estate. This Two Hundred Dollars ($200.00) must be paid first, then the children get theirs.’

The law is established in California that where a testator attempts to dispose of the entire community property as well as his separate estate, and there is nothing in the express terms of the will nor in its language when read in the light of the circumstances under which it was prepared that indicate an intention that gifts to his wife under his will are to be in lieu of her community property rights, she is not required to elect between taking under the will and claiming her community interest, she is entitled to both. (In re Estate of Prager, 166 Cal. 450, 453 et seq. 137 P. 37; In re Estate of Moore, 62 Cal.App. 265, 272, 216 P. 981.)

In the will of decedent there is no expressed intention or necessary implication from the words used and the facts surrounding the execution of the will to lead to the conclusion that decedent intended to require his wife to make an election between her community property rights and the provision made for her in his will.

Fourth: Was Mrs. Roberts entitled to be reimbursed in the sum of $1,650.97?

This question must be answered in the affirmative. It is stipulated by the parties that the estate received $10,025 from the sale of property belonging to the estate; that in addition the rents and receipts from the estate totaled $32,567.26. These two amounts aggregate the sum of $42,592.26. The evidence disclosed that Mrs. Roberts paid on behalf of the estate $1,434.18, while the total deposits to the bank account of the estate amounted to $41,435.22. Since the total receipts accounted for amount to $42,592.26, it is evident that Mrs. Roberts expended $1,157.04 of estate money not deposited in the bank and $277.14 of her own money for which she was entitled to reimbursement. It was also stipulated that the receipts from a bungalow court which had been set aside to her as a probate homestead amounted to $1,373.83, which sum was deposited in the estate account and to which sum Mrs. Roberts was entitled. The total of the two sums aggregate $1,650.97, the amount the trial court found should be paid to Mrs. Roberts.

Fifth: Was Mrs. Roberts entitled to 2/323 of the executrices' commissions and her attorneys entitled to 2/323 of the fees for the attorneys of the executrices?

This question must be answered in the affirmative. The evidence discloses that most of the work in connection with the estate was handled by Mrs. Roberts and that her attorneys prepared most of the documents in connection with the probate and settlement of the estate. No abuse of discretion appears upon the part of the trial judge in dividing the executrices' commissions and fixing the attorneys' fees.

Sixth: Was Mrs. Roberts entitled to a family allowance during the entire period of the settlement of the estate, and did the court properly allow credit for sums paid to her on account thereof?

This question must be answered in the affirmative. The Probate Court in 1933 made the following order:

‘It Is Ordered By The Court that the executrices of said estate pay to Elizabeth Clare Roberts, widow of said decedent, for her support and maintenance, the sum of $100.00, the same to date from the date of the death of said decedent, to-wit, the 11th day of August, 1933 and to continue until the further order of the court.’

The law is established that an order for a family allowance which is made ‘to continue until the further order of the court’ continues if the estate is solvent, as it was in the present case, during the progress of the settlement of the estate, unless the original order is modified. (In re Estate of Treat, 162 Cal. 250, 254, 121 P. 1003; In re Estate of Boselly, 179 Cal. 218, 219, 176 P. 45).

Since the original order was not modified, Mrs. Roberts was entitled to the family allowance during the entire period of administration of the estate.

For the foregoing reasons the orders are and each is affirmed.

McCOMB, Justice.

MOORE, P. J., concurs. W. J. WOOD, J., deeming himself disqualified, did not participate in the foregoing decision.

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