Opinion
S.F. No. 6025.
September 26, 1912.
APPEAL from an order of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person and settling the accounts of an executrix. J.V. Coffey, Judge.
The facts are stated in the opinion of the court.
R.F. Mogan, for Appellant.
Percy E. Towne, for Respondent.
1. By this appeal it is sought to modify a decree of distribution which gave to Catherine E. Robl the insurance collected on furniture which had been specifically bequeathed to her and had been burned during administration. Catherine E. Robl, to whom the furniture had been bequeathed, was also the executrix of the estate. The insurance was under a policy payable to the executrix, and $712.50 was collected upon the insurance policy after the destruction of the furniture. Title to the furniture vested in the legatee at the death of the testatrix. There would be no equity in depriving the legatee of the insurance indemnity and in giving it to the estate to which it did not belong. If, as implied, the executrix improperly charged insurance premiums to the estate, that is a matter for adjustment in her account, but is not before this court. It is well settled in cases such as this, that the insurance money takes the place of the personal property destroyed. (Wyman v. Wyman, 26 N.Y. 253; Haxall v. Shippen, 10 Leigh (Va.), 536, [34 Am. Dec. 745]; Culbertson v. Cox, 29 Minn. 309, [43 Am. Rep. 204, 13 N.W. 177]; Parry v. Ashley, 3 Sim. 97; Durant v. Friend, 11 Eng. Law Eq. 2.)
2. Under the assertion that the executrix was "speculating" with the property of the estate, it is contended that the court erred in allowing her commissions on the sale of real estate, the fact being that because of the great conflagration of 1906 the real property was sold thereafter for a less price than could have been obtained before. The language of the will provided that the property "may be sold when a fair price may be obtained therefore satisfactory to all." The executrix herself was co-owner of the property in question. She exercised the same judgment and adopted the same policy with respect to the estate's interest in the property as she did toward her own. Her two brothers, who were co-owners with her and the estate in the property, coincided with her views. It is shown that the executrix acted with fidelity and with that degree of prudence and diligence which one of ordinary judgment would be expected to bestow upon his own affairs of like nature. Indeed, more than this, it is shown that it was the very judgment which she did exercise in her own affairs of the same nature, and this fills the requirement of an executor's duty. (In re Moore, 96 Cal. 522, [31 P. 584].)
The decree appealed from is therefore affirmed.
Melvin, J., and Lorigan, J., concurred.