Kelly

Plaintiff appeals from an adverse judgment in an action to recover moneys had and received.

The following facts are not disputed: Pursuant to an order made by the superior court in and for the city and county of San Francisco plaintiff and defendant were appointed executors of the last will and testament of Dennis Kelly, deceased, and during the administration of the estate they applied for and on October 4, 1921, were granted a partial allowance of commissions in the sum of $500, which was divided equally between them. On February 8, 1923, a decree settling the final account and granting final distribution of the estate was entered wherein it was ordered, adjudged and decreed, among other things: “that the sum of Two Thousand ($2000.00) Dollars be and the same is hereby fixed and allowed as compensation to said executors for their services in said estate and that the unpaid balance thereof, to wit, the sum of Fifteen Hundred ($1500.00) Dollars is hereby ordered to be paid to said executors.” The entire latter sum was subsequently paid to defendant by check drawn upon the funds of said estate and signed jointly by plaintiff and defendant as such executors, not without question by…