Opinion
Page __
__ Cal.App.2d __ 297 P.2d 466 In the Matter of the ESTATE of Charlie Ella FRAYSHER, Deceased. Georgia REYNOLDS, Objector and Appellant, v. David N. FRAYSHER, Executor and Respondent. Civ. 5276. California Court of Appeals, Fourth District May 17, 1956Rehearing Denied June 12, 1956.
Hearing Granted July 11, 1956.
[297 P.2d 467] C. E. Crowley, Ontario, for appellant.
Edgar C. Keller, San Bernardino, for respondent.
CONLEY, Justice pro tem.
The holographic will of Charlie Ella Fraysher, a widow, left $1 to each of her children, except the appellant herein, Georgia Reynolds, to whom she devised and bequeathed 'the Place & all Households articulurs.' No one questions that she meant thereby that her daughter, Georgia, was to receive her little home (appraised at $2,500) and the furnishings therein (appraised at $100). Because of the specification in the will: 'Nelse Fraysher Gardian to see these plans are carried out', her son David N. Fraysher (also known as Nelse) was appointed executor.
The record indicates that the probate of this small estate has furnished the occasion for one of those unfortunate family feuds in which brother and sister, forgetting the Biblical injunction to 'love one another', have shown a reciprocal distrust and vindictiveness, that would scarcely occur between strangers. This has made the duties of the probate judge in the administration of the estate particularly onerous.
The appeal is taken by Georgia Reynolds from certain portions of an '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', said portions being specified as follows:
'(a) From that part of said order approving the claim of David N. Fraysher, in the sum of $461.67.
'(b) From that portion of said order approving 'all items of expenses listed in Schedule A of said account excepting the certain items enumerated.'
'(c) From that part of said order approving the claim of $200.00 for extraordinary attorney's fees, and allowing statutory fees for executor and attorneys.
'(d) From that part of said order 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.
'(e) From the blanket portion of said order 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.'
An appeal is also attempted from 'the order of said Court dated and entered September 2nd, 1955, overruling and denying appellant's motion for an order requiring the executor to produce for inspection, the bank account and checks and diary of the deceased' but as there is no authority for such an appeal, Section 1240, Probate Code, it must be dismissed.
Turning again to the order settling the account, we find that the record on appeal is not in good shape. There is no reporter's transcript; and no oral testimony was received by the court. Appellant says in her brief: 'The affidavits of Shirley Smith [P. 58-62] and Georgia Reynolds [P. 63-67] and the counter affidavit of respondent [P. 49-55] and the objections of appellant [P. 35-45], without taking of testimony, were all submitted to the Court for ruling,' and respondent states in his brief that the matter was submitted 'after argument.' Normally, in the contest of an account the respective sides produce witnesses to be examined in open court.
[297 P.2d 468] And when an appeal is taken on questions of fact it is necessary to bring a record of the evidence before the appellate court. 34 C.J.S., Executors and Administrators, § 931 Record, pp. 1145-1147; Estate of Reed, 9 Cal.App.2d 94, 96, 48 P.2d 177. As it appears, however, from the briefs and the recitals in the order appealed from that no evidence was taken, but that unspecified affidavits 'filed on behalf of both the executor and the objector' were 'read and considered by the court' it must be asked whether in a contested probate matter our codes authorize the reception in evidence of affidavits in lieu of oral testimony, particularly in the absence of specific stipulations of counsel relative thereto.
Section 1233 of the Probate Code authorizes the use of affidavits or verified petitions as evidence '* * * in any uncontested will proceedings.' And Section 2009 of the Code of Civil Procedure permits the use of an affidavit 'to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by some other provision of this code.' But nowhere in our codes or statutes is there an authorization for the substitution of affidavits for moral evidence in a contested probate proceeding such as this. 'Affidavits may not be used in evidence except where permitted by statute.' Reidy v. Collins, 134 Cal.App. 713, 722, 26 P.2d 712, 715. See also: Moon v. Moon, 62 Cal.App.2d 185, 188, 144 P.2d 596; Lacrabere v. Wise, 141 Cal. 554, 556, 75 P. 185; Estate of Paulsen, 35 Cal.App. 654, 656, 170 P. 855.
As there are numerous contested questions of fact involved, and as the trial court erroneously based its decision on affidavits and without taking any oral evidence, a reversal must follow. Moreover, with respect to some of the items in question, the evidence would not be sufficient, if the affidavits were accepted, to support the orders made.
It is ordered; that the attempted appeal from the order of September 2, 1955 overruling and denying appellant's motion for an order requiring the executor to produce for inspection the bank account and checks and diary of the deceased is dismissed, and that the order of July 11, 1955 approving the first account current and the report of executor, including the allowance upon commissions of executor, attorney fees and extraordinary attorney fees; confirming sale of personal property and instructing the executor, is reversed as to all matters specified in the Notice of Appeal on file herein, with instructions to the trial court, upon the filing of the remittitur below, to proceed expeditiously to a hearing on the said issues as made by the 'First Account Current and Report of Executor and Petition for Confirmation of Sale of Personal Property and Allowance upon Commissions of Executor and Fees of Attorneys and for Instructions' and the 'Objections to Current Report of Executor', in conformity herewith. Each party shall bear his own costs on this appeal.
BARNARD, P. J., and MUSSELL, J., concur.