In the Matter of the Estate of JOHN HEDRICK, Deceased. GEORGE M. FRINK, Administrator, Appellant, v. HEIRS OF JOHN HEDRICK, Respondents, 127 Cal. 184

CHIPMAN, C. Appeal by the administrator from an order settling his final account and from an order denying him extra compensation. 1. Appellant was public administrator and became administrator of this estate by virtue of his office in the year 1893. He filed eight semi-annual returns as required by

section 1736 of the Code of Civil Procedure—the first being “for the term commencing December 1, 1893, and ending June 1, 1894,” and the last being “for the term commencing June 1, 1897, and ending December 1, 1897.” These returns, as the statute calls them, do not appear in detail, but it is agreed and stipulated that each one “shows that during said term (i. e., the term embraced in each return) the administrator duly paid out as expenses in this estate” a certain sum total, the several amounts of which are given.

The administrator filed his final account April 23, 1898, and on July 13, 1898, he filed an amended final account, which latter was the account heard and determined.

The following stipulation was entered into at the hearing: “It is stipulated that all the items of credit contained in the amended final account .... excepting the item of $2,090.18, are correct, the same having been gone into at the former hearing of the first final account herein filed.” Appellant claims, as the result of the foregoing stipulation, that respondents ad-united the correctness of the expenditures as shown by these semi-annual returns, and, as they form the total of the principal items in the amended final account, their correctness as to that account is also admitted.

We cannot so regard this stipulation. This item of $3,090.18 was ’expressly and specifically contested, and much, indeed most, of the evidence was addressed to that item with a view to make legal proof of its correctness and to show that the administrator should be credited with it.

The manifest object of the stipulation, as to the semi-annual returns, was to show that they contained a statement of expenses and their amount for each period, but it was not intended by the contesting parties that they should be received as conclusively showing the expenditures to he just and proper and as duly established by vouchers. The stipulation went no further than to admit that the returns showed certain total expenses for given periods. 3.

The contestants are the heirs at law of the deceased, and the contested item in the account reads as follows: “By amount paid out for expenses of keeping up and properly caring for the estate as per semi-annual exhibits of administrator, filed herein as follows: June 1, 1894; December 6, 1894; June 1, 1895; December 1, 1895; June 1, 1896; December 1, 1896; June 1, 1897; December 1, 1897—$3,090.18.” The administrator testified that this amount was “made up of money paid out for the benefit of the estate for which there are no vouchers.

I get that amount from the regular reports made semi-annually to this court.” He explained that he arrived at the above sum by subtracting from the totals of each semi-annual report the amount for which he had vouchers at the hearing and adding these different amounts together. He testified that he could only give a general idea of how these different amounts of money were paid out.

In one case he said: “It was paid out for car fare and buggy hire and little things for the ranch—paid out in cash.” In another instance he added to these purposes “for improvements.” Again he testified: “In those instances where I testify that these different balances were expended for the benefit of the estate, it would be impossible to remember the items and the persons to whom I paid them, and the places where I paid them.” He further testified that the items entering into the first five of his semi-annual reports were taken from a regular account-hook and cash-book; that this cash-book has since been lost and he has been unable to find it; that this book contained the items of expense now charged for, and that he now has no memoranda of any of the items for which he has no vouchers.

He testified that the money was expended for the estate and he personally derived no benefit from any of the expenditures. Some testimony was introduced to corroborate the testimony of the administrator.

Section 1632 of the Code, of Civil Procedure provides as follows: “On the settlement of his account he (the administrator) may be allowed any item of expenditure not exceeding $20 for which no voucher is produced, if such item be supported by his own uncontradicted oath positive to the fact of payment, specifying when, where, and to whom it was made; but such allowances in the whole must not exceed $500 against any one estate,” etc.

Appellant contends that by a fair construction the statute must be held to mean that the limitation of $500 applies only to such items in excess of that sum as have no support other than the oath of the administrator. He may support his account by his own “uncontradicted oath” to that extent and no more; but that where he supports his account by his own oath and by satisfactory proofs other than and corroborative of this oath, the excess over $500, no matter how much it may be, must be allowed in the settlement of his accounts. We cannot accept this construction of the statute.

Its language is plain and unambiguous and means, as we conceive, that the administrator may support his account as to an item not exceeding $20, for which he has no voucher, “by his own uncontradicted oath to the fact of payment, specifying when, where, and to whom it was made,” to the extent in all of $500. Beyond that limit he must support the account by vouchers, and no amount of corroboration of his oath to the expenditures by the testimony of other witnesses will avail to dispense with vouchers; and as to the $500 he must show when, where, and to whom the disbursement was made.

This is the plain and obvious reading of the statute, which, so far as we are aware, has never been questioned by this court. Such loose and unsatisfactory statements as those made by the administrator, as to when, where, and to whom he made the disbursement, are wholly insufficient. The administrator was confessedly unable to make the statutory proofs and must abide the consequences of his failure to do so. 3. Appellant claims that the semi-annual returns made under

section 1736 of the Code of Civil Procedure must be treated as accounts stated and conclusive against the respondents (citing Hendy v. March, 75 Cal. 567), for the reason that they were aware that these returns had been made and filed and had made no objection to them. Eespondents were nonresidents, and it is claimed that their resident attorney here, Hr. Harvey Potter, examined the returns from time to time and made no objection to them and that he sent two or three of them to the attorney of respondents at their place of residence. We do not think that the return to be made by the public administrator, required by

section 1736, could under any circumstances be treated as an account stated. It is wholly different from the accounts required to be made by administrators and for a wholly different purpose, and is not intended to and does not take the place or serve the purpose of the semiannual accounts required by

section 1622 of the Code of Civil Procedure and sections following. Before even these latter accounts can be conclusive they must be heard by the court and its order made determining their correctness. The “return” spoken of in

section 1736 is not an account in the sense that these other accounts are such; it is not made to the court; there is no hearing upon it and no order of the court required as to it. Ho heir is bound by it, nor does it conclusively establish any fact stated in it as against an heir. The account mentioned in Hendy v. March, supra, was an account stated between two persons having pecuniary relations with each other and was an entirely different account from the official return of the public administrator in the case before us. 4.

The evidence as to appellant’s right to extra compensation discloses no abuse of discretion by the court in refusing this allowance. The order must, therefore, stand. (Code Civ. Proc., sec. 1618.) It is advised that the orders appealed from be affirmed. Haynes, C., and Gray, C., concurred. For the reasons given in the foregoing .opinion the orders ap pealed from are affirmed. McFarland, J., Temple, J., Henshaw, J. Hearing in Bank denied.