Fraysher's Estate, In re

• Decision Date: 11 October 1956
• Citation: 301 P.2d 848,47 Cal.2d 131
• Court: California Supreme Court
• Parties: In re ESTATE of Charlie Ella FRAYSHER, Deceased. Georgia REYNOLDS, Objector and Appellant, v. David N. FRAYSHER, Executor and Respondent. L. A. 23995.

Page 848

301 P.2d 848

47 Cal.2d 131

In re ESTATE of Charlie Ella FRAYSHER, Deceased.

Georgia REYNOLDS, Objector and Appellant, v. David N. FRAYSHER, Executor and Respondent.

L. A. 23995.

Supreme Court of California, In Bank.

Oct. 11, 1956.

C. E. Crowley, Ontario, for appellant.

Edgar C. Keller, San Bernardino, for respondent.

SPENCE, Justice.

Charlie Ella Fraysher, a widow, died leaving a small estate and an holographic will, which gave to each of her children $1, except for her daughter Georgia Reynolds, to whom she bequeathed 'the Place & all Households articulars.' 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 to rent the real property. In support of her objections, she filed her own affidavit and that of her sister, Shirley Smith; and the executor filed an affidavit in his behalf. As the parties agree, the account and objections, affidavits and counteraffidavit, were all submitted to the court 'without taking of testimony' and 'after argument.'

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"; (c) 'approving the claim of $200 for extraordinary attorney's fees, and allowing statutory fees for executor and attorney'; (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. In re Estate of Reed, 9 Cal.App.2d 94, 96-97, 48 P.2d 177; see 34 C.J.S. Executors and Administrators, § 931 Record, pp 1145-1147. Here the executor's account was settled solely upon the basis of opposing affidavits. There is therefore no reporter's transcript. Section 1233 of the Probate Code authorizes the use of affidavits or verified petitions as evidence '* * * in any uncontested probate proceedings'; but there appears to be no statutory provision authorizing the substitution of affidavits for oral evidence in a contested probate proceeding such as this.

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. In re 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. In re 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 check 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.

Nor are appellant's objections well taken to certain items of expense listed in Schedule A and approved. These items consisted of expenses of administration, taxes, water bills, and gasoline costs for two trips made by the executor to California. At the hearing appellant only objected to the gasoline charges. One trip was for the executor's appearance in court resisting appellant's petition for his removal, and the other trip was for the executor's consultation some two months later with his attorney. The court allowed a portion of the gasoline expenses for the first trip and disallowed entirely such expenses for the second trip. Appellant now for the first time questions the propriety of the yearly water charges, contending that 'for a year's time no water was used on the premises.' There is nothing in the record which supports this statement, the matter was not in issue at the hearing, and the point may not now be raised. In passing upon the reasonableness and necessity of expenditures during administration, the court below is vested 'with a broad discretion,' which will not be disturbed on appeal except when abused. In re Estate of Parker, 186 Cal. 668, 670, 200 P. 619; In re Estate of Lindauer, 53 Cal.App.2d 160, 165, 127 P.2d 589.

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,' In re 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. In re 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, that they owed these sums. Appellant admitted that she had received $900 as proceeds of a mortgage on the deceased's home...