United California Bank v. Johnson

Beneficiaries of the estate of Lucinda Cross filed objections to the final account of United California Bank, executor, *83 complaining that the bank had paid commissions to two real estate brokers, without verified claims having been filed and without court approval. The probate court held an evidentiary hearing to determine whether Probate Code section 929 permitted allowance of these expenditures. That statute permits allowance of debts paid to creditors who have not filed claims if “it shall be proven that such debts were justly due, were paid in good faith ...." 1 Following the hearing, the court expressed “grave doubts” that the commissions had been justly due or paid in good faith. The court concluded, that the payments did not satisfy section 929 and ordered the executor surcharged for the expenditures plus interest. United California Bank appeals.

In expressing “grave doubts” that the brokers’ commissions had been justly due and paid in good faith, the probate court impliedly placed upon the executor the burden of proving these elements. Section 929 declares that these elements “shall be proven.” The statute provides an exception to the general principle…