ADMINISTRATORS RIGHT TO LETTERS - APPEAL NOTICE-COURTS-JURISDICTION-EVIDENCE.

1. An appeal from an order appointing an administrator will not be dismissed because of the notice of appeal being entitled as in the superior court of a county other than that wherein the appointment was made, where the parties treated the notice as sufficient throughout the proceedings, and the appellee's attorneys were not misled.

2. Where a public administrator of one county claims the right to administer on an estate, he has the right to appeal from an order of the court of another county appointing another as administrator.

3. A court appointing a special administrator of an estate acquires jurisdiction alone for the special purposes of that character of administration.

4. Where a court of one county appoints a general administrator of an estate after the appointment of a special administrator, but before the appointment of a general administrator by the court of another county, it thereby acquires general jurisdiction of the estate.

5. In proceedings for the appointment of an administrator, a claimant to letters introduced evidence that the deceased had been. superintendent of a ranch in a county other than that in which proceedings were had for ten years immediately preceding his death; that he furnished a house for his occupancy on the ranch, doing his own cooking, sleeping there, keeping poultry and cattle about the place, and receiv ing his mail at a post office on the ranch. Against this evidence a witness testified that prior to the ten-year period deceased stayed at a hotel in the county wherein proceedings were had, claiming that as his residence, and that he voted there; but during the ten years he had been to the hotel but four or five times for two or three days at a time. Held, that the residence of deceased was not in the county wherein proceedings were had.

Department 1. Appeal from superior court, San Joaquin county; Joseph H. Budd, Judge.

Proceedings for the appointment of an administrator of the estate of Fred W. Damke, deceased. From an order appointing C. C. Franklin, public administrator of San Joaquin, S. B. Smith, public administrator of Sacramento county, appeals. Reversed.

Bruner & Brothers, for appellant. Avery C. White, Buck, Miller & Clark, and Gus. G. Grant, for respondent.

GAROUTTE, J. The public administrator of the county of Sacramento appeals from an order of the superior court of the county of San Joaquin, appointing C. C. Franklin, public administrator of that county, administrator of the estate of Fred W. Damke, deceased. He had theretofore in said proceeding filed a written opposition to the appointment of Franklin administrator of said estate, claiming that said Damke at the time of his death was a resident of the county of Sacramento. It is asked that this appeal be dismissed because the notice of appeal is entitled "In the superior court of the county of Sacramento," and also by reason of other defects appearing upon its face. These objec

tions are too technical, for the defects are unsubstantial. The notice recites that the appeal is taken from an order and decree made and entered the 2d day of August, 1900, directing letters of administration to issue to C. C. Franklin, public administrator of the county of San Joaquin. This order and decree was the only one made upon that day, or any other day, appointing C. C. Franklin, public administrator of the county of San Joaquin, administrator of the estate of the deceased. It is perfectly evident that respondent's attorneys were not misled by the defects appearing upon the face of the notice, and. in addition to this, subsequent to the service of the notice, a bill of exceptions was prepared and settled, to be used upon appeal from the order appointing Franklin administrator, and no suggestion was ever made that the aforesaid notice was defective in substance. Throughout the proceedings the notice has been treated as sufficient, and acted upon, and it is now too late to make the objections here made for the first time.

It is next claimed in support of the motion to dismiss that the appellant is not a party aggrieved, and hence has no right of appeal. Appellant claims the right to administer upon the estate of Damke, deceased, and under these circumstances is entitled to take this appeal. In re Healy's Estate, 122 Cal. 162, 54 Pac. 736. If Damke was in fact a resident of Sacramento county at the time of his death, it was not only the right, but the duty of the public administrator of Sacramento county to appear in the court of San Joaquin county, and contest Franklin's right to letters of administration. And, if he had the right to contest the issuance of letters of administration to Franklin, he had the right to appeal from the decree entered against him. The fact that he claims the right to administer in Sacramento county, and that these proceedings were inaugurated before the superior court in San Joaquin county is not material. Appellant, by an order of the superior court of Sacramento county, made July 12, 1900, was appointed special administrator of the estate of the aforesaid deceased. Upon July 21. 1900, Franklin filed his petition in the superior court of the county of San Joaquin, asking for general letters of administration upon the estate of said deceased. Upon July 23d appellant filed his petition in the superior court of the county of Sacramento, asking for general letters of administration upon said estate. Upon August 2d general letters of administration were issued to Franklin in the superior court of the county of San Joaquin, appellant's written opposition thereto being overruled, and it is from this order that the present appeal is taken. Thereafter general letters of administration were issued to appellant in the superior court of the county of Sacramento. is now insisted upon the part of appellant that, the superior court of the county of Sacramento having made an order appointing

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Damke," sometimes known "Fred Damke"), deceased. From an order directing general letters of administration to be issued to S. B. Smith, public administrator of Sacramento county, C. C. Franklin, public administrator of San Joaquin county, appeals. Reversed.

Avery C. White, Buck, Miller & Clark, and Gus. G. Grant, for appellant. Bruner & Brothers, for respondent.

GAROUTTE,. J. This is an appeal by C. C. Franklin, administrator of the estate of one Damke, deceased, from an order of the superior court of Sacramento county made and entered on August 4, 1900, directing general letters of administration upon said estate to be issued to S. B. Smith, public administrator of that county. The facts of this cause are closely connected with the facts of cause numbered "Sac. No. 898," entitled "In the Matter of the Estate of Fred W. Damke, Deceased" (65 Pac. 888), which involved an appeal from an order of the superior court of the county of San Joaquin appointing C. C. Franklin administrator of the estate of said deceased; and reference is herewith made to the opinion rendered upon that appeal, and filed this day, for additional facts. At the time appointed for the hearing of the application of the public administrator of Sacramento county for general letters of administration upon the estate of the aforesaid deceased, Franklin, public administrator of San Joaquin county, appeared, and filed an opposition thereto, wherein he set out that the estate was in due course of administration in the superior court of the county of San Joaquin, and that he had, by that court, already been appointed administrator of the estate of said deceased. At the hearing, evidence to this effect was offered by him, but was rejected by the court, and it is the soundness of this ruling that the present appeal has been brought to review. At the hearing it also appeared that prior to the time when the proceedings were inaugurated in the superior court of San Joaquin county, which led up to the appointment of a general administrator of the estate of the deceased, Damke, the superior court of Sacramento county had appointed Smith, the respondent herein, special administrator of the estate of said deceased. Upon this ground it was urged by respondent that jurisdiction over the administration of said estate had been first taken by the superior court of the county of Sacramento, and that, therefore, the cause was pending in that court at the time the proceedings were had in the superior court of the county of San Joaquin. Upon this state of facts the superior court of Sacramento county held that, it having first taken jurisdiction over the administration of the estate, that jurisdiction could not be interfered with by any subsequent procedure taken by the superior court of another county. The principle invoked by the Sacramento

court to sustain its jurisdiction cannot be questioned. But it has been held in the opinion filed this day in the cause appealed from the superior court of the county of San Joaquin, and numbered "Sac. No. 898." that the superior court of Sacramento county, in taking jurisdiction over the administration for the purposes of appointing a special administrator, did not thereby secure jurisdiction over the estate of the deceased for the purpose of appointing a general administrator. With that declaration of the law the court is entirely satisfied. It necessarily follows that when the order from which the present appeal was taken was made in this case, the administration of the estate of Damke was progressing in the superior court of an adjoining county, which court had taken jurisdiction of the proceeding prior to the filing of the petition in Sacramento county for the appointment of a general administrator. In view of what has been said, the conclusion necessarily follows that the superior court of Sacramento county, upon the question of jurisdiction, should have given way, and allowed the superior court of San Joaquin county to conduct the further administration of the estate. It is not intended to intimate, under this rather peculiar state of facts, that the proceedings should be dismissed in the superior court of Sacramento county, but rather that they should stand in abeyance until a final judgment has been rendered in the superior court of the county of San Joaquin, holding that said court either has or has not jurisdiction over the administration of said estate. For the foregoing reasons. the order appointing a general administrator is reversed, and the cause remanded.

We concur: VAN DYKE, J.; HARRISON, J.

(133 Cal. 446)

In re DOW. (L. A. 846.) (Supreme Court of California. July 25, 1901.)

GUARDIAN AND WARD-GUARDIAN'S ACCOUNT -APPROPRIATION OF TRUST FUNDS-COM

POUND INTEREST CONCLUSIVENESS OF FINDINGS.

1. Where an account of a guardian, though designated an "annual account," showed on its face that it extended over eight years, and the guardian had resigned, and another had been appointed, and the executrix of the guardian's bondsman appeared and filed a written consent, though the notice stated an annual accounting. the account was properly settled as the final account.

2. Where a guardian loaned money belonging to the trust estate to his bondsman, and received certain stocks and bonds in payment, the failure of the court to require the guardian's final account to show the amount actually invested in the stocks is not prejudicial to the bondsman.

3. Where a guardian invested his ward's money in stocks and bonds, and appropriated them to his own use, it was not error for the court to refuse to credit the guardian with such stock.

4. Trust funds appropriated by a guardian to his own use are chargable to the guardian, with compound interest.

5. Where, in appeal from proceedings for the settlement of a guardian's final account, the evidence was not brought up, the findings are conclusive.

Department 1. Appeal from superior court, Los Angeles county; John L. Campbell, Judge.

Proceedings for the final settlement of the account of Fred C. Howes, guardian of the estate of Ralph G. Dow, a minor. From a decree affirming the final account, Clara F. Howes, executrix of the will of Felix C. Howes, deceased, who was bondsman for said guardian, appeals. Affirmed.

Flint & Barker and Jones & Weller, for appellant. Albert J. Sherer, for respondent.

VAN DYKE, J. This appeal is taken by Clara F. Howes, executrix of the last will and testament of Felix C. Howes, deceased, from a decree settling the account of Fred C. Howes, as guardian of the estate of said Ralph G. Dow. The said guardian, April 15, 1899, filed his account, in which he states in his affidavit to the same that it "contains a full, true, and particular account of all my receipts and disbursements on account of the said estate from the 23d day of May, 1891, to the 13th day of April, 1899, and of all sums of money belonging to the said estate which have come into my hands as such guardian, or which have been received by any other person, by my order or authority, for my use." By said account a balance is found in his hands, to the credit of his ward, in the sum of $3,576.80. The appellant, as executrix of Felix C. Howes, deceased, filed objections to said account, in which it is stated that said Felix C. Howes, deceased, was one of the sureties on the bond given by the said Fred C. Howes upon qualifying as such guardian, and that he remained as such up to his death, 14th of September, 1898; that Fred C. Howes is insolvent, and is unable to pay the balance, shown by the said account to remain in his hands, due his ward; that said guardian in his account charged himself the sum of $1,628.01, as interest coming into his hands, which interest in fact never did come into his hands, and that said interest is computed with annual rests, whereas, if any interest should be charged against him, it should be no greater than simple interest on the principal sum found to be due; that said guardian had not given himself credit in his account with certain bonds, of the face value of $4,000 or more, coming into his hands as such guardian; and that said guardian invested the funds in said bonds in good faith, for the interest of his ward. After hearing upon the account and the objections thereto, the court found, among other matters, "that the said guardian invested all the money of said ward coming into his hands in bonds of the East Riverside irrigation district and stock of the North Riverside Land & Water Company; that said investments were made in

bad faith, and that the guardian at the time of said investment did not regard said stock or bonds worth the amount of money invested therein, but relied wholly upon the representations of Felix C. Howes, now deceased, from whom such purchases were made, that he would guaranty the repayment to said guardian of all sums of money so invested by him, together with 7 per cent. interest per annum, compounded annually, upon all sums so invested; that without said guaranty, verbally made, the said guardian would not have made said investment; that at the time of the appointment of said guardian, as such, up to and including the date of the death of said Felix C. Howes, to wit, on the 14th day of September, 1898, the said deceased was a man of large means, reputed to be worth about $250,000, and was the cashier of the Los Angeles National Bank, a banking institution of the city of Los Angeles, and was the uncle of said guardian, and that said guardian, during all of said time, was a paying teller of said Los Angeles National Bank, and was subject to the directions of said Felix C. Howes, deceased; that after receiving the moneys of said ward the said guardian loaned the same to Felix C. Howes, upon his own individual note, bearing interest at the rate of 7 per cent. per annum, compounded annually; that said note was afterwards repaid, not in cash, but in the bonds and stock heretofore mentioned; that at all the times after the receipt of said moneys by said guardian he could have loaned the same, upon good security, at a rate of interest exceeding 7 per cent. per annum, compounded annually; that all of the investments made by said guardian were made without any order of court so to do; that said guardian received interest upon said bonds up to the 1st day of January, 1896, and that he commingled said interest with his own funds, and appropriated the same to his own use." It is further found "that on the 28th day of April, 1899, the said Fred C. Howes resigned his trust as said guardian, and thereupon his successor was duly appointed and qualified, and the said Fred C. Howes offered to turn over to said successor said bonds, but that said successor refused to accept the same, and that afterwards the said Fred C. Howes appropriated said bonds to his own use, and disposed of the same."

Appellant assigns the following as errors: 1. That the court erred in settling the account as a final account when it purports to be only an annual account. The Code provision with reference to the accounts of guardians reads: "The guardian must, upon the expiration of a year, from the time of his appointment, and as often thereafter as he may be required, present his account to the court for settlement and allowance." Code Civ. Proc. 1774. The account in this case is headed: "Annual Account of Fred C. Howes, Guardian. C. C. P. 1628." "To cash received as follows, to wit: Balance on hand, as

shown by account rendered May 23, 1891, $2,549.03." Then proceeds to carry forward, to the credit of the ward, annually, the cash balances, deducting expenditures for the use of the ward in clothing and books for schooling, etc., leaving a balance in the hands of the guardian as already stated. From the heading of the account it is evident that it was made up upon a printed blank prepared for executors and administrators as provided in the section of the Code referred to, to wit, Code Civ. Proc. § 1628. It would seem, however, from the heading, that he had rendered an annual account as mentioned in the section with reference to guardians, to wit, Code Civ. Proc. 1774; and that this, although designated an annual account, was really intended for a final settlement of his guardianship; and the court, in its findings in settling the same, designates it as "the final account of Fred C. Howes, as guardian of said Ralph G. Dow, a minor," and it appears also that prior to the settlement of said account said Howes had resigned his trust as guardian, and another had been appointed in his place. This, therefore, as to him and the sureties on his bond as such guardian, was a final account. The appellant could not have been misled by the account having been called an annual account instead of a final account, nor by the fact that the notice for the settlement used the same term; for she appeared and filed a written contest, and took part in the settlement of said account. Upon its face it shows that it was not the account rendered at the expiration of one year after the appointment, and also that it was an account rendered nearly eight years thereafter; and the settlement in which appellant took part shows that it was the final settlement of the account of said guardian. The liability of the guardian to his ward was fixed by the final settlement of said account. The misnomer or misdescription of the paper filed as an account in this case is quite immaterial. In substance, it was the final account of the guardian, although miscalled "annual account," and the law respects form less than substance. It is the duty of the court to disregard any error or defect which does not affect the substantial rights of the parties. Code Civ. Proc. § 475.

2. The court did not err in not requiring the account to show the amount of money actually invested in the stocks and bonds referred to in the findings. That was not specified as one of the objections in the contest filed by the appellant. The money so paid, whatever the amount may have been, was received by the bondsman of said guardian whose estate is represented by appellant, and it is not apparent how the failure in not showing the amount so invested can prejudice the appellant.

3. It is claimed that the court should have given the guardian credit for the shares of stock and bonds resulting from the investment of the money of the ward. The tind

ings, however, show that such stock and bonds were disposed of by said guardian, and the proceeds appropriated to his own use, together with the interest thereon.

4. It is claimed on the part of appellant that the court erred in charging the guardian compound interest. In Re Stott's Estate, 52 Cal. 403, the executor had mingled the funds of the estate with his own, but there was no evidence of actual profit, and it was held that he was responsible for presumed profits upon the moneys employed, "and that the general rule in such cases was that he should be charged with legal interest, with annual rests." The same rule was held in Re Clark's Estate, 53 Cal. 359; and in Re Cousins' Estate, 111 Cal. 445, 44 Pac. 183, it is said: "The general rule now thoroughly well established in this state, as to the limit of the liability of a trustee for mingling the trust funds with his own, and their use in his own business, where it is not shown that a larger profit was realized therefrom, is the return of the principal, with legal interest thereon, compounded annually. This rule is applicable alike to guardians and executors as to other trust relations."

5. It is finally claimed that the account should not have been settled, for the reason that the findings show that it does not contain a true and correct statement of the moneys of the ward received, invested, and disbursed by the guardian, and does not exhibit a true condition of the estate, but the findings are "that all the items of debits and credits appearing in said guardian's account are true and correct; that said account is entitled to be allowed and settled." And as conclusions of law: "That said account as presented is true and correct, and is entitled to be settled, and allowed as such; that the objections of said objector are not correct, and should not be allowed." And in the decree: "It is ordered, adjudged, and decreed that the said account be, and the same hereby is, in all respects as the same was rendered and presented for settlement, approved, allowed, and settled as and for the final account of said guardian." The evidence not having been brought up, the findings are conclusive, and they are ample to support the decree. Decree affirmed.

(138 Cal. 400) HAYNES v. TREADWAY et al. (Sac. 772.)1 (Supreme Court of California. July 24, 1901.)

MORTGAGES-FORECLOSURE SALE-TIME TO REDEEM-CHANGE OF STATUTE -SALE FOR SURPLUS.

Plaintiff foreclosed a mortgage executed by defendant, and at the sale purchased the property for more than the mortgage debt, with costs and expenses added. At the time the mortgage was executed, the statutory right o redemption was limited to six months. Before the sale it was extended to one year. Held Rehearing denied August 14, 1901.