296 F2d 595 Hepner v. H Chozick

296 F.2d 595

111 U.S.App.D.C. 338

Nevin V. HEPNER, Appellant
H. Edward CHOZICK, Executor of the Estate of Elizabeth Geary
Hepner, deceased, Appellee.

No. 16318.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 12, 1961.
Decided Nov. 16, 1961.

Mr. Lawrence C. Moore, Washington, D.C., for appellant.

Mr. John J. McBurney, Washington, D.C., for appellee.

Before Mr. Justice BURTON retired,1 and EDGERTON and DANAHER, Circuit Judges.


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The appellee, executor of the estate of the late Elizabeth Geary Hepner, filed a complaint for an accounting against the appellant, a stepson of the deceased, to whom she had given a general power of attoeney. The District Court referred the action of the court's auditor 'with direction to audit and state said account, and to do any and all things required in this cause in accordance with rule 53 of the Federal Rules of Procedure.'


The term 'master' in the Rule includes an auditor. F.R.Civ.P. Rule 53(a), 28 U.S.C.A. Rule 53(b) provides that 'inactions to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.' Rule 53(e)(II) requires the court to 'accept the master's findings of fact unless clearly erroneous' and provides that the court 'after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.'


The auditor held hearings, took testimony, and filed a report in which he found that appellant was accountable for a balance of $5,399.99. The appellant filed objections to the report. 'After consideration of the Pleadings, the report, the record, the memoranda in support, of and in opposition to the Report, and the other papers on file in the case' the court, without receiving further evidence, approved the report and adopted the auditor's findings of fact and recommended judgment. We find no error or abuse of discretion. Cf. Michael Del Balso, Inc. v. Carozza, 78 U.S.App.D.C. 56, 136 F.2d 280; Dyker Bldg. Co., Inc. v. United States, 86 U.S.App.D.C. 297, 182 F.2d 85.




Sitting by designation pursuant to 28 U.S.C. 294(a)