Opinion
Rehearing Granted Dec. 22, 1942.
Appeal from Superior Court, Los Angeles County; Benjamin J. Scheinman, Judge.
In the matter of the estate of Samuel A. Scherer, deceased. From a judgment directing distribution and from an order settling the final account of Edward J. Cotter, as executor, etc., and directing payment of extraordinary fees to the executor, Gloria Scherer Kelly appeals and the executor moves to dismiss the appeal.
Appeal dismissed.
COUNSEL
Elmer P. Bromley, H. E. Lindersmith, and Frank E. Carleton, all of Los Angeles, for appellant.
Edward J. Cotter, in pro per., of Los Angeles, for respondent.
OPINION
WHITE, Justice.
This is an appeal from an order of the probate court settling the executor’s second and final account and authorizing as well as directing said executor to pay to himself the sum of $8,000 as extraordinary commissions, and for distribution of the estate.
The controversy with which we are here concerned centers about respondent executor’s claim for extraordinary commissions. It appears that the estate of the decedent consisted of numerous corporations, all actively engaged in business transactions consisting in the main of a loan and finance business, in the conduct of which by decedent during his lifetime the executor of his will acted as the former’s attorney, and in conjunction with decedent managed, operated and controlled such corporations prior to the death of decedent, who owned them. Although the will is not before us, it is conceded that such testamentary document named two children of decedent by a former marriage as sole legatees, and to his widow he made certain bequests. During the course of administration, the widow of the decedent purchased the interests of both children, through which purchase she became vested with 100% of the corporate stock of all five of the corporations belonging to the estate. On December 13, 1937, the widow sold such corporate stock to National Funding Corporation. On the last named date, pursuant to an order of partial distribution made by the probate court, the estate delivered to National Funding Corporation all the aforementioned stock. Pursuant to the provisions of section 1001 of the Probate Code, and in accordance with the court’s order for partial distribution, National Funding Corporation deposited with the executor of decedent’s estate the sum of $60,000 in lieu of a bond provided for in the last cited section; this sum to be utilized as directed in the court’s order for the "liquidation of claims, taxes, fees and kindred estate liabilities." Pursuant to the terms of section 1001, supra, whatever remained of the aforesaid deposit made by the distributee, National Funding Corporation, after the express purposes and uses for which said fund was to be used had been accomplished, the balance remaining, and which constituted all of the cash remaining in the estate should be, as the court directed, returned to such distributee. When this was done there remained for distribution to the widow, appellant herein, only 200 shares of certain mining stock, appraised as having no value whatever, and one piece of realty having an appraised value of $25.
By his second and final account and petition for distribution respondent executor sought an allowance of extraordinary commissions for services allegedly rendered by himself as executor in the sum of $20,850, but the probate court found that the sum of $8,000 was a reasonable fee for the claimed extraordinary services, and directed the payment of such last named amount to the executor. By way of answer to the executor’s petition, appellant widow, while challenging the executor’s claim for extraordinary commissions, did not contest the distribution of the estate as prayed for. Appellant widow’s answer alleged that the executor had entered into an agreement whereby he consented to accept the sum of $1,000 in full payment of whatever extraordinary services he had rendered the estate, and further alleged that the sum of $20,000 was an inordinate amount for the services actually performed, and prayed that an allowance for such commissions be made to him in an amount not exceeding the sum of $1,000 allegedly agreed upon.
We are asked by respondent to dismiss this appeal, for the claimed reason that appellant has neither an interest in the subject matter of the appeal, nor is she an aggrieved party within the provisions of the code section specifying those entitled to appeal from an order or judgment of the court, and that she has no standing in any proceeding to reverse or modify the decree or order. Prob.Code, § 1233; Code Civ.Proc. § 938. We think this claim is well founded. Appellant widow, by her assignment of all the stock of the corporations owned by the estate, divested herself of any interest in such estate save and except to receive her specific bequests therein, which under the order of distribution were given to her. Neither in her filed objections nor at the hearing thereof, did appellant at any time object to the settlement of the final account or the order of distribution, other than so far as the award of extraordinary commissions was concerned. This is evidenced by the following, which appears in the reporter’s transcript: "The Court: Now, is there any objection to the settlement of the account? Mr. Bromley: (Appellant’s Counsel): No, your Honor, our answer objects to the extraordinary fees only."
The order settling the second and final account and petition for distribution gave to National Funding Corporation "all cash on hand and remaining in the estate and thirteen (13) shares capital stock of S. A. Scherer, a corporation." The same order distributed to appellant the residue of the estate, and that was all that she was entitled to, so far as the record herein discloses. The extraordinary executor’s commissions were payable out of the money deposited by the National Funding Corporation at the time it received the assets of the estate other than those which formed the basis of appellant’s special bequests, and whatever remained out of such deposit made by the named distributee after the purposes of such deposit, which included expenses of administration, had been accomplished, belonged to such depositor. Should appellant prevail on this appeal and the executor’s claim for extraordinary commissions be wholly disallowed, she would not benefit from or be affected thereby, because the amount represented thereby would under the court’s order rightfully be returned to the distributee, National Funding Corporation.
In her reply brief appellant urges that she does have an interest in the balance remaining out of the $60,000 deposited as aforesaid by and through an agreement between appellant and her assignee (National Funding Corporation), but appellant concedes "the record is silent upon the subject." Manifestly, therefore, we cannot take cognizance of such agreement. If appellant had an interest in the money in question, she should have asserted such interest in the court below. Instead, she made no objection and disclaimed any opposition to the order of distribution, confining her challenge to the sole question of the award of extraordinary commissions to the executor. Where, as here, the record discloses that appellant has not the requisite interest and is not an aggrieved party, the appeal must be dismissed. In re Finch’s Estate, 202 Cal. 612, 615, 262 P. 34; 2 Cal.Jur. pp. 947, 948.
For the reasons herein stated, it is ordered that the appeal be, and the same is, dismissed.
YORK, P. J., and DORAN, J., concurred.