Home/California Court of Appeal/Bobcock v. Watson

Bobcock v. Watson

272 Cal. App. 2d 768, 77 Cal. Rptr. 753, 1969 Cal. App. LEXIS 2333
CourtCalifornia Court of Appeal
DecidedMay 12, 1969
DocketCiv. No. 33425
StatusPublished
Cited by1 cases

This text of 272 Cal. App. 2d 768 (Bobcock v. Watson) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobcock v. Watson, 272 Cal. App. 2d 768, 77 Cal. Rptr. 753, 1969 Cal. App. LEXIS 2333 (Cal. Ct. App. 1969).

Opinion

REPPY, J.

This is an appeal by Patricia (Chalgren) Babcock (hereinafter, Patricia), daughter of the deceased, George Edward Barnhart (hereinafter, decedent), and proposed distributee of his estate, from an order1 settling the [771]*771third and final account2 after the overruling of exceptions to the account and petition for distribution, which had been filed by Patricia. The respondents named in the appeal are the other proposed distributees except Joan Pengra (hereinafter, Joan), the other daughter of the deceased.3

The exceptions to the final account filed in the probate court appear in an original and in a supplemental document. They are as follows:

(1) That there are improperly charged against Patricia payments of principal and interest on loans secured by the real property devised to her totalling $30,897.45 (this is made up of $1,197.30 principal and interest paid against the encumbrance on the New York Drive property, $8,070 principal and interest paid against the encumbrance on the Waldo Avenue property and $21,630.15 being the amount of the encumbrance assumed by the buyer of the Waldo Avenue property which was sold during probate).
[772]*772(2) That said charges should be made against the entire estate.4
(3) That an order directing the executor to distribute one $1,000 Unilever bond to William Harris, Jr., would require the executor to buy one (necessitating further pro rata charges against each distributee’s share of the estate) because the two Unilever bonds inventoried were never found and no banking institution would supply an undertaking to file with Unilever in order to get the bonds reissued. At oral argument counsel for Patricia advised this court that this particular objection was being withdrawn. Thus, we forego consideration of any problems in this regard.

In the written documents which were filed by Patricia with the probate court there is no specific exception to 46.70 percent of the unpaid administration expenses5 being charged against her. Said unpaid expenses are $35,012.44 and 46.70 percent thereof is $16,350.81. However, in her brief, Patricia asserts that this charge is not proper, citing section 752 of the Probate Code; and she urges that this point be considered on appeal. Respondents, in their brief contend that it should not be considered because it was not included within the original exceptions ruled upon by the trial court. It is true that Patricia did not include the costs of administration item in her written exceptions. However, there is indication in the memorandum decision of the trial judge that the question was raised before him (probably orally at the hearing)6 7and that he gave it consideration. He first observed that “In the Estate of Bobb [sic—correct name is Babb], 200 Cal. 252,7 the [773]*773expenses of administration were charged against the residuary’s shares.” In a succeeding paragraph he cited Estate of Traver, 145 Cal. 508 [78 P. 1058],* *****8 and remarked, “In this case the court said that the expenses of administration and debts were to be paid by the portion of the testator’s property which he did not include in the will. ’ ’

In light of the nature of these two cases and the trial judge’s reference to them, we conclude that the proration of expenses of administration was raised at the hearing on the final account. Where this occurs and no request is made that the exception be reduced to writing, that requirement of section 927, Probate Code, is waived. In Estate of Marre, 127 Cal. 128, 132 [59 P. 385], the appellate court presumed that the requirement that objections to an account be in writing had been waived by the administrator where “. . . oral objections were made in his presence and in the presence of the court, and [he] at no time objected. . . .” In Estate of Johnston, 188 Cal. 336 [206 P. 628], it was considered the lack of verification of written exceptions to an account had been waived by failure to make any objection thereto.

Moreover, in one sense, we are dealing with the duty of the probate judge to see to it that the provisions of a statute which have given direct preference to a certain class of legatees when it comes to allocating expenses of administration are carried out. We feel that an oversight as to a duty of this nature should be correctable originally on appeal. A number of decisions support this viewpoint, and the eases cited by respondents do not make it untenable.

In the early case of In re Sanderson, 74 Cal. 199 [15 P. 753], objections were filed to an account indicating that it did not reveal that a promissory note listed as “uncollected” was not uncollected through no fault of the administrator. At the hearing, the objectors wanted to show that the administrator was negligent in not making the collection. The administrator contended on appeal that the objectors did not have the right to do this because they had not filed specific objections. The [774]*774appellate court stated that it was 11 the duty of the court of its own motion carefully to scrutinize” the account (italics added; p. 206) ; that “ [t]he court is bound to protect the estate, and, as far as may be, the rights of all concerned” (p. 208) ; that “in the absence of exceptions, the court . . . should inquire into any matter which may seem to the court objectionable, and pass judgment thereon; . . .” (p. 208); that “it is the duty of the court carefully to scrutinize the account, and to reject all claims of the executor illegal in themselves or unjust in fact.” (Italics added; p. 210.)

In Estate of Hubbell, 216 Cal. 574 [15 P.2d 503], the question involved whether interest should be paid on a legacy. It was not clear from the averments of the petition for distribution that interest on the legacy was to be denied, and such a claim had not been made in the court below. By reason of this circumstance, the appellate court ruled that the point was timely presented on appeal. In addition, however, the court said this (p. 578) : “It was the duty of the probate court to distribute the estate among the persons entitled and in the proportions due them, under the will and the law, and to order the payment of interest to the appellants on their legacies.” (Italics added.) (See also Estate of Marre, supra, 127 Cal. 128, 132; Estate of Franklin, 133 Cal. 584, 587 [65 P. 1081]; Estate of Willey, 140 Cal. 238, 243 [73 P. 998]; Estate of Hite, 155 Cal. 448, 453 [101 P. 448]; Estate of Barreiro, 125 Cal.App. 752, 773-774 [14P.2d 786].)

In Estate of More, 121 Cal. 635 [54 P. 148], (cited by respondents), where written exceptions had been filed, the court, by way of dictum, stated at page 639: 11 But, whether exceptions are filed or not, the court should carefully examine every account presented for settlement and be satisfied that it is in every respect practically correct before entering an order settling it. ” (Italics added.)

In Estate of Kirkpatrick, 109 Cal.App.2d 709, 713 [241 P.2d 555

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Barnhart
272 Cal. App. 2d 768 (California Court of Appeal, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
272 Cal. App. 2d 768, 77 Cal. Rptr. 753, 1969 Cal. App. LEXIS 2333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobcock-v-watson-calctapp-1969.