IN RE: CHAMBERLAIN'S ESTATE. (1941)

District Court of Appeal, Third District, California.

IN RE: CHAMBERLAIN'S ESTATE. CHAMBERLAIN ET AL. v. PERRY.

Civ. 6546.

Decided: May 14, 1941

O'Donnell & Bagby, of Woodland, for appellant Chamberlain. C. C. McDonald, of Woodland, and R. H. Schwab, of Sacramento, for appellant Chapman. A. G. Bailey, of Woodland, for respondent.

It is pointed out by respondent that Chamberlain was removed as executor by order of court on March 14, 1939, and that the note was paid April 18, 1939. He states that the right of contribution did not arise until the note was paid by the estate. We may say that the record does not furnish the dates mentioned. This question is raised here for the first time. Assuming that the position of respondent is correct, the rule is that until the account of the executor under such circumstances is finally settled, he is, in respect to his duty to account, treated as still in office. 11b Cal.Jur. p. 528, sec. 1074. The right of action for contribution arose prior to a settlement of the account, and the court would have the right to charge the executor with an indebtedness to the estate, if it accrued prior to the settlement of the account.

The petition for rehearing is denied.

PER CURIAM.

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