Reynolds v. Fraysher

Charlie Ella Fraysher, a widow, died leaving a small estate and an holographic will, which gave to each of her children $1.00, except for her daughter Georgia Reynolds, to whom she bequeathed “the Place & all Households articulare.” It is agreed that this bequest meant the deceased’s home, appraised at $2,500, and the furnishings therein, appraised at $100, which property constituted the principal assets of the estate. Pursuant to the will, the deceased’s son, David N. Fraysher, was appointed the executor. When the executor, a resident of Oregon, sought approval of his first account and accompanying report, Georgia Reynolds, a resident of Kansas and the principal beneficiary, filed written objections to several items, citing certain credits and debts, a sale of part of the personal property, and the failure

Thereafter, the court made its “Order Approving First Account Current and Report of Executor, Including Allowance upon Commissions of Executor, Attorney Fees and Extraordinary Attorney Fees; Confirming Sale of Personal Property; and Instructing Executor.” The objector Georgia Reynolds appeals from those portions of the order (a) “approving the claim of David N. Fraysher in the sum of $461.67”; (b) “approving ‘all items of expenses listed in Schedule “A” of said account excepting the certain items enumerated’ ”; (e) “approving the claim of $200 for extraordinary attorney’s fees, and allowing statutory fees for executor and attorneys”; (d) “confirming the sale of the household furnishings set forth as Exhibit ‘A,’ sold to a son of the executor, at least six months before appraisement, without notice”; and (e) generally “approving said account current ‘in all other respects, other than as otherwise herein set forth,’ thereby overruling the objections to said report made by this appellant.”

Following the hearing and the making of the order, the objector moved for an order requiring the executor to produce for inspection the bank statements, cancelled checks and diary of the deceased. The court made its order denying such motion, and the objector appeals therefrom. As there is no authority for such an appeal (Prob. Code, § 1240), it must be dismissed.

Turning to the appeal from the order settling the executor’s account, appellant contends that the challenged portions were approved without sufficient evidence, “without due consideration and without authority.” Her position is not well taken.

Preliminarily, there is a question of procedure to be determined. Normally, in the contest of an account the respective parties produce witnesses to be examined in open court. And when an appeal is taken on issues of fact, it is necessary to bring a record of the evidence before the appellate court. (Estate of Reed, 9 Cal.App.2d 94 , 96-97 [ 48 P.2d 177 ]; see 34 C.J.S. § 931 “Record,” pp. 1145-1147.) Here the executor’s account was settled solely upon the basis of opposing

Ordinarily, affidavits may not be used in evidence unless permitted by statute. (2 Cal.Jur.2d § 30, p. 637.) Thus, it has been held error to admit affidavits in evidence over objection (Lacrabere v. Wise, 141 Cal. 554 , 556 [ 75 P. 185 ]) or where the opposing party has no opportunity to object to their use. (Estate of Paulsen, 35 Cal.App. 654 , 656 [ 170 P. 855 ] ; Reidy v. Collins, 134 Cal.App. 713 , 722 [ 26 P.2d 712 ].) But this is a different situation in that the parties did not object to the use of affidavits in evidence, and both parties adopted that means of supporting their positions. Both having participated in such presentation of the evidence as a matter of convenience in view of the fact that both were nonresidents of this state, they cannot question the propriety of the procedure on appeal. (Estate of Reilly, 81 Cal.App.2d 564 , 569-570 [ 184 P.2d 922 ].) Moreover, evidence which is admitted in the trial court without objection, although incompetent, should be considered in support of that court’s action (Stickel v. San Diego Elec. Ry. Co., 32 Cal.2d 157 , 161 [ 195 P.2d 416 ]; also Parsons v. Easton, 184 Cal. 764 , 769 [ 195 P. 419 ]), and objection may not be first raised at the appellate level. (Soares v. Ghisletta, 1 Cal.App.2d 402 , 404-405 [ 36 P.2d 668 ].) The various disputed items of account must therefore be examined in the light of the opposing affidavits.

Appellant first objects to the approval of the executor’s claim for $461.67 as reimbursement for advances made on behalf of the deceased. While she contends that such claim is vague and uncertain, “fictitious” and “padded,” it appears that every item, except for a small amount for postage, was supported by a receipt or cancelled cheek filed with the executor’s affidavit. The court made its order settling these issues of fact after a review of the conflicting affidavits, and its implied findings as to the propriety of the contested items will not be disturbed on appeal. (Doak v. Bruson, 152 Cal. 17 , 19 [ 91 P. 1001 ]; Hall v. Bohannon, 38 Cal.2d 458 , 466 [ 241 P.2d 4 ]; Voeltz v. Bakery etc. Union, 40 Cal.2d 382 , 386 [ 254 P.2d 553 ].)

Appellant next objects to the allowance of $200 for extraordinary attorney fees, and to the allowance of statutory fees for the executor and his attorneys. As the basis for the extraordinary attorney fees, the account and report sets forth the commencement of proceedings for the sale of the real property in the estate (which were later discontinued at appellant’s request), the successful representation of the executor on two separate court hearings required on appellant’s motions for his removal, and the time spent, some thirty-seven hours, in performing these services. The allowance of extraordinary attorney fees for such professional services “rests largely in the discretion of the court in the first instance” (Estate of Parker, 186 Cal. 671 , 672 [ 200 P. 620 ]), and it cannot be said here that there is no basis in the record for the extra compensation. (Estate of Gump, 129 Cal.App.2d 783 , 790 [ 277 P.2d 886 ].)

Nor can appellant prevail in her objections to the statutory fees allowed the executor and his attorneys. The computation was made on the basis of the full inventoried value of the assets of the estate as set forth in the amended inventory, which included a debt listed against appellant for $900 and one against Shirley Smith, also the deceased’s daughter, for $375. Both alleged debtors denied, by affidavit,

Likewise there is no merit to appellant’s objection to the court’s confirmation of the sale of certain household furnishings to a son of the executor for $60. These furnishings were part of the personal property in the deceased’s home that were left to appellant by the will. The inventory was filed some six months after the sale, and the value of all household furnishings was listed at $100. Appellant complains that the sale was made before the items were appraised and without notice to her. The executor, however, in his affidavit states that while the formal appraisal was not filed until later, the appraiser some four months prior to the sale made his findings of value on the property and a copy there

Finally, appellant attacks the court’s general approval of the executor’s account current except as specifically noted, “thereby overruling the objections to said report made by this appellant.” Coming within this category was appellant’s argument concerning the rental possibility of the deceased’s home. It is appellant’s position that said home had a rental value of $35 per month, that she had submitted to the executor the name of a person willing to pay such rent, but that the executor nevertheless elected to let the home stand vacant for over a year contrary to his duty to take charge of all property in the estate and account for available rents in the course of his administration. (Prob. Code, § 581.) In his affidavit, the executor referred to various attempts that he had made to rent the premises through a real estate agent “but was prevented from doing so by the actions of objector (appellant)”; that he did not feel that the tenant recommended by appellant would be satisfactory because such person had previously “used decedent’s telephone for long

Appellant further argues several factual issues relating to the alleged failure of the executor to account for certain moneys received by him for application to burial expenses for the deceased. These matters were not grounds of specific objection taken by appellant to the submitted account, but the first reference to them appears to have been made in the affidavits later filed by appellant and her sister Shirley Smith. The affidavits were served on the executor’s attorney on the day of the hearing. It is the general rule that in the absence of an independent inquiry undertaken by the court, the issues for settlement are limited by the account and report on the one hand and the written objections on the other. (Estate of Boyes, 151 Cal. 143 , 147-148 [ 90 P. 454 ].) Under the circumstances presented here, the executor neither had the opportunity nor was he required to submit evidence on the alleged accounting discrepancies tardily raised by appellant, they were not properly before the court for settlement (Estate of Mallory, 99 Cal.App. 96 , 102 [ 278 P. 488 ] ; Estate of Roberts, 49 Cal.App.2d 71 , 81 [ 120 P.2d 933 ]), and it did not undertake to pass upon them. Likewise they are not matters for consideration on this appeal.

In summary, the record indicates that the executor made such explanations of his administration as to impress the trial court with his honesty and good faith. The estate is relatively small and it unquestionably has provoked a great deal of unfortunate family feuding between brother and sisters. The trial court has apparently reconciled the differences fairly and reasonably, and there appears no reason for intervention in its settlement by the reviewing court.

The portions of the order approving the account from which the appeal was taken are affirmed. The attempted appeal from the order denying appellant’s motion for an order requiring the executor to produce for inspection the

Gibson, C. J., Shenk, J., Carter, J., Traynor, J., Schauer, J., and McComb, J., concurred.