In Re Estate Of Elnora Garrie Smead

WASTE, C.J. Motions have been made to dismiss the several appeals in each of the above-entitled proceedings. The facts underlying the litigation are involved and we shall recite only such as are necessary to a consideration of the motions now before us. It appears that in the course of the administration of the estate of each of the above-named decedents, the probate court, pursuant to the terms of a testamentary trust provided for in the will of each decedent, appointed the respondent, who was also executor, trustee of each of said trusts. Subsequently, the life beneficiaries died and the corpus of the  trusts vested in the remaindermen, who were the same in each instance, subject to final accounting of the trustee.In due course, the trustee presented his first and final account with petition for distribution of each trust and for trustee's and attorney's fees. The remaindermen advanced certain objections to the accounts as submitted and the court, after hearing, entered a consolidated decree on December 16, 1936, settling both accounts, allowing certain compensation to the trustee and to his attorney, and directing distribution of the net corpus of each trust to the remaindermen. The decree likewise specifically determined that the remaindermen should have judgment against the trustee for several thousand dollars for losses suffered by the trusts and found to be chargeable to the trustee. On February 5, 1937, the trustee filed a notice of intent to move for new trial or for an order vacating and modifying the consolidated decree.The motion was based on five of the seven grounds specified in section 657 of the Code of Civil Procedure as grounds for new trial. Pending disposition of this motion, the remaindermen on March 16, 1937, filed in each proceeding their notice of appeal to this court from the consolidated decree settling the trustee's final accounts.