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Court of Appeal, First District, Division 4, California.

IN RE: ESTATE OF Margaret T. LEGEAS, Deceased (Two Cases). Timothy J. McINERNEY, et al., Petitioner and Appellant, v. Jarlath HENEGHAN, et al., Contestants and Respondents.

Jarlath HENEGHAN, Petitioner and Respondent, v. Timothy J. McINERNEY, et al., Contestants and Appellants.

Jane CONNOLLY, Cross–Complainant and Respondent, v. Timothy J. McINERNEY, et al., Cross–Defendants and Appellants.

Jane CONNOLLY, Plaintiff and Respondent, v. Timothy J. McINERNEY, et al., Defendants and Appellants.

No. A036182.

Decided: May 11, 1989

Clyde W. Stitt, San Francisco, for appellants. Nelson H. Wild and Robert A. Belluomini, San Francisco, for respondents.

Foremost among the questions presented by these appeals is whether California will recognize a tort cause of action for the fraudulent destruction of testamentary instruments.   We align California with other states which allow recovery in tort for the intentional deprivation of an expected inheritance.


The decedent, Margaret T. Legeas, executed numerous wills and codicils in her old age.   The heart of this dispute centered around which of two of those wills would be admitted to probate.

The first will was executed by Mrs. Legeas in September of 1970.   Enumerated therein were 27 specific bequests, including $10,000 to sister Jane Connolly;  $2,000 to cousin Father Jarlath Heneghan;  $20,000 to niece Margaret McInerney;  and $20,000 to “my beloved friend, attorney and advisor, Timothy J. McInerney.”   Mr. McInerney was nominated as executor and given the power to distribute the residue of the estate “to each of my legatees named or otherwise referred to hereinbefore, and in such amounts as my Executor ․ shall in his sole discretion determine, and to such charities as he shall, in his sole discretion, select.”

The second will was executed in May of 1979.   Among the 17 specific bequests were $3,000 to Father Heneghan and $11,000 to Ms. Connolly.   The residue of the estate was bequeathed to Ms. Connolly.   Father Heneghan was nominated by Mrs. Legeas as the executor of her estate.   There is no mention of either Mr. or Mrs. McInerney.

Between 1970 and 1983, the close friendship between Mrs. Legeas and the McInerneys cooled.   Mrs. Legeas felt that Mr. McInerney had unduly profited from a joint business venture and from his handling of the estate of Mrs. Legeas' husband.   Mrs. Legeas was annoyed by “lovey-dovey” telephone calls from Mr. McInerney, whom she found intimidating and with whom she wished to avoid personal contact.   Her feelings were the same with respect to Mrs. McInerney, although less intensity of emotion was involved.1  Mrs. Legeas' antagonism towards Mr. McInerney progressed from distrust to fear and outright hatred.   Up to 1983 Mrs. Legeas concealed from the McInerneys knowledge that she had executed the 1979 will.

By May of 1983 Mrs. Legeas' physical condition had deteriorated to the point that Father Heneghan had her placed in a nursing home.   In August of that year Mrs. McInerney initiated conservatorship proceedings and was appointed temporary conservator of the person and estate of Mrs. Legeas.   Later that month, Mrs. McInerney collected certain assets of the estate such as passbooks, certificates of deposit, and stock certificates, most of which she left with her attorneys.   In one of Mrs. Legeas' safety deposit boxes Mrs. McInerney discovered the original of the 1979 will.   Surprised at its provisions, Mrs. McInerney put it into her purse and did not turn it over to attorneys representing her in her capacity as Mrs. Legeas' conservator.   According to the McInerneys, they gave the will to Mrs. Legeas, who subsequently told them she had torn it up.

Mrs. McInerney's petition to be appointed permanent conservator was successfully opposed by Father Heneghan as well as three of Mrs. McInerney's brothers and sisters on the grounds of (1) Mrs. Legeas' expressed desire that the McInerneys not “have anything to do with my person or my estate” and (2) fears that Mr. McInerney would dominate his wife and thus gain control of Mrs. Legeas' estate.   The probate court appointed a bank as permanent conservator of Mrs. Legeas' estate and a charitable organization as permanent conservator of her person.

Mrs. Legeas died in July of 1984 at age 83, leaving an estate valued at approximately $500,000.   The following month Mr. McInerney filed a petition asking for admission of the 1970 will to probate, and for his appointment as executor of the estate.   Several weeks later Father Heneghan filed a petition for admission to probate of the 1979 will 2 (the original of which was alleged to have been “lost or fraudulently destroyed or [is] being concealed”), as well as his appointment as executor of the estate.   The two petitions were consolidated.

In November of that year the McInerneys filed a complaint by which they elected to contest the 1979 will on the grounds that (1) it had been executed at a time when Mrs. Legeas was “mentally incompetent” and acting under the undue influence of the attorney who drafted it,3 and (2) “in 1983, decedent tore up and destroyed the purported 1979 will ․, with intent to revoke the same, and with the express intent to revive and make effective, as her last will and testament, the ․ 1970 will.”

Ms. Connolly responded with a cross-complaint to the McInerneys' probate petition, and with a separate complaint which was given a separate civil action number.4  In each of these pleadings (as subsequently amended) Ms. Connolly alleged causes of action against the McInerneys for (1) their fraudulent destruction of the 1979 will (2) their “use of fraud[,] undue influence[,] and duress” in procuring the destruction of the 1979 will by Mrs. Legeas (3) their interference with the prospective economic advantage Ms. Connolly would have received under the 1979 will (4) a constructive trust covering the estate assets to which Ms. Connolly would be entitled under the 1979 will should the McInerneys prevail in having the 1970 will admitted to probate (5) the McInerneys' failure to produce the 1979 will as required by Probate Code section 320, and (6) the intentional spoliation of evidence.   The new action was ordered “consolidated for purposes of discovery, motions, and trial” with the probate proceedings.

The causes were tried in probate court by a jury which returned two verdicts.   The first was a special verdict finding that the 1970 will had been revoked by Mrs. Legeas and that the 1979 will had been fraudulently destroyed.   A judgment ordering admission of the 1979 will to probate was entered in due course.   The jury also returned a general verdict in the fraud action finding Mr. and Mrs. McInerney liable for compensatory damages of $182,616.60 (which represented the attorneys' fees incurred by Ms. Connolly in connection with all three actions), and further finding Mr. McInerney liable for punitive damages of $150,000.   A separate judgment reflecting this verdict was also entered.

Following denial of their motions for new trial and judgment notwithstanding the verdicts, the McInerneys filed a timely notice of appeal from the judgments.   Mr. McInerney also appeals from a pretrial order of instruction to the special administrator of Mrs. Legeas estate, and from an order denying his motion for reconsideration.



We were more than a little surprised upon reading the parties' briefs by their agreement that California has never taken a position regarding the question whether the fraudulent destruction of a will is an actionable wrong for which tort recovery may be had.   Our independent research confirmed that the parties were indeed correct.

The area of transfers from a decedent's estate has proven to be a fertile breeding ground for fraud.   Courts have condemned fraud in a constellation of contexts.   Its reported manifestations have been organized by commentators into these categories:  (1) in inducing or preventing an inter vivos conveyance;  (2) in the procuring of the execution of a will;  (3) in the prevention of the execution of a will;  (4) in causing the revocation or alteration of a will;  (5) in the prevention of the revocation or alteration of a will;  and (6) in the destruction, concealment, or spoliation of a will.   (See Evans, Torts to Expectancies in Decedents' Estates (1944) 93 U.Pa.L.Rev. 187;  Annot., Liability in Damages For Interference with Expected Inheritance or Gift (1983) 22 A.L.R.4th 1229;  2 Page on Wills (Bowe–Parker rev. 1960) §§ 24.1, 24.3–24.5;  Rest., Restitution, § 184, com. a.)   Our concern is with the last grouping.

Judicial aversion to testamentary-related fraud is not a recent phenomenon.   The common law of Britain permitted equitable relief to recover a bequest which had been frustrated by the destruction or concealment of a will.  (See e.g., Barnesly v. Powel (Ch. 1749) 1 Ves.Sen. 284 [27 Eng.Rep. 1034];  Tucker v. Phipps (Ch. 1746) 3 Atk. 359 [26 Eng.Rep. 1008];  Hampden v. Hampden (H.L. 1709) 3 Bro.P.C. 550 [1 Eng.Rep. 1492].)   The impulse to refuse judicial sanction to fraudulent interference with testamentary transfers continued after the formation of the United States.   Traditional equitable remedies such as the imposition of a constructive trust were, however, deemed inadequate for complete redress.   Beginning in 1834, the courts of eight states have explicitly recognized an independent tort action for damages caused in the intentional destruction, concealment, or spoliation of a will.   (Allen v. Lovell's Adm'x (1946) 303 Ky. 238, 197 S.W.2d 424;  Creek v. Laski (1929) 248 Mich. 425, 227 N.W. 817;  Wilburn v. Meyer (Mo.App.1959) 329 S.W.2d 228;  Dulin v. Bailey (1916) 172 N.C. 608, 90 S.E. 689;  Petitt v. Morton (1930) 38 Ohio App. 348, 176 N.E. 494 affd. Morton v. Petitt (1931) 124 Ohio St. 241, 177 N.E. 591;  Buchanan v. Thrasher (Tex.Civ.App.1965) 387 S.W.2d 950;  Mead v. Heirs of Langdon (1834) referred to in Heirs of Adams v. Adams (1849) 22 Vt. 50;  see McGregor v. McGregor (D.Colo.1951) 101 F.Supp. 848 [apparently applying Colorado law], affd. (10th Cir.1953) 201 F.2d 528.)   Courts in at least eleven other states have given indications that such a cause of action would probably find a favorable reception.  (See Benedict v. Smith (1977) 34 Conn.Supp. 63, 376 A.2d 774;  DeWitt v. Duce (Fla.1981) 408 So.2d 216;  Allen v. Leybourne (Fla.App.1966) 190 So.2d 825;  Mitchell v. Langley (1915) 143 Ga. 827, 85 S.E. 1050;  Estate of Jeziorski v. Tomera (1987) 162 Ill.App.3d 1057, 114 Ill.Dec. 267, 516 N.E.2d 422;  Nemeth v. Banhalmi (1981) 99 Ill.App.3d 493, 55 Ill.Dec. 14, 425 N.E.2d 1187;  Frohwein v. Haesemeyer (Iowa 1978) 264 N.W.2d 792;  Maxwell v. Southwest Nat. Bank, Wichita, Kan. (D.Kan.1984) 593 F.Supp. 250 [interpreting Kansas law];  Cyr v. Cote (Me.1979) 396 A.2d 1013;  Monach v. Koslowski (1948) 322 Mass. 466, 78 N.E.2d 4;  Hegarty v. Hegarty (D.Mass.1942) 46 F.Supp. 319 [applying Massachusetts law];  Casternovia v. Casternovia (1964) 82 N.J.Super. 251, 197 A.2d 406;  Harris v. Harris (1863) 26 N.Y. 433;  Barone v. Barone (W.Va.1982) 294 S.E.2d 260.)   Torts of this nature have also been praised by Prosser (Prosser, Law of Torts (4th ed. 1971) § 130, pp. 950–951) and endorsed by the American Law Institute (Rest.2d Torts, § 774B;  Rest., Torts, § 870, com. b, illus. 2, § 912, com. f, illus. 13).

The reason behind these developments is not hard to fathom.   Fraud evokes almost universal repugnance expressed with near-Biblical fervor.   Even the most cynical of philosophers found it defensible only in time of war.  (T. Hobbes, Leviathan (1651) pt. I, ch. 13.)   The hostility to fraud is evident in judicial attempts to define it in such a manner as not to exclude any of its infinite possible permutations.   For example, according to Supreme Court of Oklahoma:  “Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth.   No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.”  (Stapleton v. Holt (1952) 207 Okl. 443, 445, 250 P.2d 451, 453;  see Citizens State Bank v. Gilmore (1979) 226 Kan. 662, 667, 603 P.2d 605, 609.)   It is “the very essence of wrong;  conduct that has always been and always will be wrong, according to the common judgment of mankind;  conduct that cannot be dressed up or manipulated or associated so as to invest it with any element of right.”   (Morton v. Petitt, supra, 124 Ohio St. 241, p. 247, 177 N.E. 591, 593.)

 California's general position against fraud is equally uncompromising.   The principle that “fraud vitiates everything” (see e.g., Bennett v. Superior Court (1933) 218 Cal. 153, 160, 21 P.2d 946;  Turner v. Turner (1959) 167 Cal.App.2d 636, 640, 334 P.2d 1011;  People v. Eiseman (1926) 78 Cal.App. 223, 241, 248 P. 716) is symptomatic of this attitude.   The definition of fraud, and the judicial approach to it, are the same as those just quoted.  (See Fort v. Board of Medical Quality Assurance (1982) 136 Cal.App.3d 12, 19, 185 Cal.Rptr. 836;  Ach v. Finkelstein (1968) 264 Cal.App.2d 667, 674–675, 70 Cal.Rptr. 472;  Estate of Arbuckle (1950) 98 Cal.App.2d 562, 568, 220 P.2d 950;  Wells v. Zenz (1927) 83 Cal.App. 137, 140, 256 P. 484.)   The Legislature's attitude toward fraud committed within the testamentary context is particularly intolerant.   The forgery of a will has been declared a crime (Pen.Code, § 470), as has the destruction or concealment of an instrument, such as a will, for the purpose of preventing its production in a legal proceeding (Pen.Code, § 135).   Additional remedies not of a criminal nature have also been deemed appropriate.   This court recently held that “persons who successfully contest a forged will submitted to probate may maintain an action for malicious institution of civil proceedings against those who offered the forged document with knowledge of its falsity.”   (Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 645, 226 Cal.Rptr. 694.)   California has long made provision for proving fraudulently destroyed wills in probate proceedings.5  It is thus clear that this state has a general policy against fraud, particularly as it applies to tampering with testamentary transfers.

 We believe it is fitting to augment these expressions of disapproving policy with a tort action for damages resulting from the fraudulent destruction, concealment, or spoliation of a will.   As we demonstrate, this conclusion is fully compatible with existing law and entails only a small extension of the frontier of common law tort remedies.

This position enjoys a measure of statutory support.  Probate Code section 320 provides:  “The custodian of a will, within thirty days after being informed that the maker thereof is dead, must deliver the same to the clerk of the superior court having jurisdiction of the estate, or to the executor named therein.   Failure to do so makes such person responsible for all damages sustained by any one injured thereby.”  (Emphasis added.)   The relevant inference which can be drawn from this provision is that the possibility of monetary damages being awarded in response to a judicially-declared cause of action is already within the contemplation of the statutory scheme governing the probate of estates.

There has also been considerable judicial activity in related areas.   The intentional interference with prospective economic advantage is already an established basis for tort recovery in a nontestamentary context.  (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 822–827, 122 Cal.Rptr. 745, 537 P.2d 865.)   The same is true with respect to the destruction of evidence intended for use in judicial proceedings.  (Smith v. Superior Court (1984) 151 Cal.App.3d 491, 198 Cal.Rptr. 829.)   Moreover, a California court has already recognized that the destruction of a will, even if inadvertent, can amount to fraud.   (Estate of Arbuckle, supra, 98 Cal.App.2d 562 at pp. 569–572, 220 P.2d 950.)   Finally, there is precedent of this court for the proposition that a tort cause of action may be an ancillary consequence of probate proceedings.   (See Steiner v. Eikerling, supra, 181 Cal.App.3d 639, 226 Cal.Rptr. 694.)

The converging emanations from these existing California statutory and judicial sources may thus be seen as condemning the fraudulent destruction of evidence that will form the decisive basis for distribution of an estate, and providing a tort remedy to one injured thereby.   Our holding merely extends these expressions of public policy to reach a result already accepted by a substantial number of other jurisdictions.

There can be no dispute concerning the adverse consequences which may result from the deliberate prevention of the decedent's testamentary wishes becoming known.   Most obviously, the testator's intended scheme of distribution is not implemented.   The memory of the testator retained by the living may be blighted by totally unjustified recriminations concerning the deceased's miserliness, ingratitude, or mental balance.   Treasured family possessions may be lost forever.  (See Prob.Code, § 322.)   The intentional obliteration of the best evidence of a testator's dispositional wishes may chill or quash thoughts of uncovering alternate proof.  “[I]ntentional spoliation of evidence is a form of obstruction of justice, [which] has a devastating effect on a potential plaintiff and could prevent such a plaintiff even seeking justice in a court of law.”  (Smith v. Superior Court, supra, 151 Cal.App.3d 491 at p. 499, 198 Cal.Rptr. 829.)   Nor is the wrong limited to private persons.   If the judgment of the probate court is final, that court has been misinformed and has made irreversible dispositions on the basis of deliberate deception.   The court will thus have been made the inadvertent instrument used to defraud rightful beneficiaries.   These consequences need not be belabored.  “Argument and citation of authority can add nothing to the obvious proposition that the unlawful and unjustifiable, and, therefore, malicious, destruction of a will, resulting in direct loss to a legatee, is a wrong for which there must be a remedy.”  (Creek v. Laski, supra, 248 Mich. 425, 428, 227 N.W. 817, 818;  see Civ.Code, § 3523.)   It is the nature and compensability of this “direct loss” which will next be considered.


 The damages caused by fraudulent interference with a testamentary disposition which remains undiscovered until after there has been a final distribution of the testator's estate are easily computed;  the “direct loss” is amount of the lost legacy.  (See Creek v. Laski, supra, 248 Mich. 425, 427–428, 227 N.W. 817, 818;  Dulin v. Bailey, supra, 172 N.C. 608, 609, 90 S.E. 689, 690;  Petitt v. Morton, supra, 38 Ohio App. 348, 176 N.E. 494 affd. Morton v. Petitt, supra, 124 Ohio St. 241, 177 N.E. 591.)   But what damages can be recovered if the intended fraud is discovered and prevented during the course of probating the estate?   Citing Code of Civil Procedure section 1021,6 the McInerneys contend that Ms. Connolly cannot recover compensatory damages measured by the attorneys' fees incurred by her in connection with the will contests.

There is an undeniable plausibility to this claim.   By enacting section 1021 “[t]he Legislature has established that in the absence of an express agreement or statute, each party to a lawsuit is responsible for its own attorney's fees.”  (Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 5, 148 Cal.Rptr. 419, 582 P.2d 1010.)   The seeming absoluteness of this general principle is deceptive, for there are recognized “exceptions ․ created by the courts pursuant to their inherent equitable powers.”  (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 198 Cal.Rptr. 551, 674 P.2d 253.)   Prominent among them is the so-called “Prentice exception,” which was originally promulgated in these terms:  “A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred.”  (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620, 30 Cal.Rptr. 821, 381 P.2d 645.)   Strictly speaking, the attorneys' fees damages awarded to Ms. Connolly do not come within this exception because no third party is involved.

Nevertheless, the recovery of attorneys' fees as damages can be upheld by analogy to several situations which are not commonly recognized as additional exceptions to the general rule.   Attorneys' fees can be recovered as damages in malicious prosecution actions even if no third party is involved.   (See e.g., Bertero v. National General Corp. (1974) 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608;  Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405;  Singleton v. Perry (1955) 45 Cal.2d 489, 289 P.2d 794;  Eastin v. Bank of Stockton (1884) 66 Cal. 123, 4 P. 1106.)   The same is true with regard to an action for false arrest or imprisonment.  (See Nelson v. Kellogg (1912) 162 Cal. 621, 123 P. 1115.)   Attorneys' fees were also awarded in a fraud action which required resisting a bankruptcy petition which formed an aspect of the fraudulent scheme.  (See Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135 Cal.Rptr. 802.)   As former Presiding Justice Devine of this court put it, attorneys' fees may be recovered as damages where such “fees are of the essence of the loss sustained.”  (Isthmian Lines, Inc. v. Schirmer Stevedoring Co. (1967) 255 Cal.App.2d 607, 612, 63 Cal.Rptr. 458.)

Ms. Connolly's situation is essentially no different from these diverse instances of unwarranted prior litigation.   Once Mr. McInerney filed the original petition, it was absolutely unavoidable that the probate court would be involved.  (See Prob.Code, § 300.)   Similarly, it was then utterly foreseeable that Ms. Connolly (who lives in Manchester, England, and has never been to this country) and Father Heneghan (who is attached to the diocese of Seattle) would be obliged to retain local counsel to represent their interests.   Ms. Connolly and Father Heneghan were compelled to contest Mr. McInerney's petition for admission of the 1970 will, and to see Father Heneghan's competing petition for admission of the 1979 will become the subject of four months of acrimonious litigation.   The lengthy trial would have been unnecessary had not the McInerneys destroyed the original of the 1979 will.   Ms. Connolly was in effect subjected to a species of malicious prosecution, which, as we have seen, permits a plaintiff to recover damages for attorneys' fees incurred in antecedent litigation.   No logical reason suggests why Ms. Connolly should be denied the recovery afforded to the similarly situated victim of malicious prosecution.  (See Civ.Code, § 3511.)   The counsel fees for which she became indebted are thus “of the essence of the loss [she] sustained.”  (Isthmian Lines, Inc. v. Schirmer Stevedoring Co., supra, 255 Cal.App.2d 607, 612, 63 Cal.Rptr. 458.)

We have it from our Supreme Court that “[a] plaintiff's remedy in tort is compensatory in nature and damages are generally intended ․ to restore an injured person as nearly as possible to the position he or she would have been in had the wrong not been done.”  (Turpin v. Sortini (1982) 31 Cal.3d 220, 232, 182 Cal.Rptr. 337, 643 P.2d 954.)   The preceding discussion demonstrates that Ms. Connolly has established her common law entitlement to damages intended to recompense her for the attorneys' fees she incurred solely by reason of the McInerneys' unjustified invocation of the probate court's jurisdiction.   As a separate and independent ground for our holding, we also note that Ms. Connolly's recovery of attorneys' fees as damages does enjoy a measure of statutory support.

In Estate of Filtzer (1949) 33 Cal.2d 776, 205 P.2d 377, the Supreme Court considered whether a family allowance awarded to a minor child pursuant to former Probate Code section 680 properly included attorneys' fees.   At the time that statute entitled the minor child “ ‘to such reasonable allowance out of the estate as shall be necessary for [its] maintenance according to [its] circumstances, during the progress of the settlement of the estate․’ ”  Sustaining the award, the court held that “it would seem proper to conclude that in giving a child the right to an allowance for ‘maintenance’ against his father's estate, the Legislature intended to comprehend in such term all such elements as would reasonably enter as factors essential to the satisfaction of that obligation, including an allowance for attorney fees necessarily incurred in the prosecution of the statutorily authorized proceedings.”  (Id. at p. 783, 205 P.2d 377 [emphasis omitted].)

As previously noted, Probate Code section 320 specifies that a custodian's failure to deliver a will to the probate court “makes such person responsible for all damages sustained by any one injured thereby.”   This statute speaks with particular force to Ms. Connolly's situation.   If a custodian does not produce a will, the obvious person who will be “injured thereby” is a beneficiary who would otherwise receive a legacy under the will.   It is equally apparent that such a person would attempt to forestall such an injury by resorting to the legal process of the probate court.   Such a course of action would ordinarily require the assistance of counsel.   The legatee would thus be damaged by the custodian's breach of his or her statutory duty to the extent that such expenses would not have otherwise been incurred.   The amount of the attorneys' fees thus incurred would not only be foreseeable;  it would, we believe, fit comfortably within the broad guarantee of section 320 that the custodian is “responsible for all damages sustained by any one injured thereby.”  (Emphasis added.)   To paraphrase our Supreme Court:  “it would seem proper to conclude that in [making a custodian liable for all ‘damages'], the Legislature intended to comprehend in such term all such elements as would reasonably enter as factors essential to the satisfaction of that obligation, including ․ attorney fees necessarily incurred ․”  (Estate of Filtzer, supra, 33 Cal.2d 776, 783, 205 P.2d 377 [emphasis added].)

III **


The McInerneys argue that the trial court erred in consolidating the probate and civil actions for a single trial.   Although plaintiffs present a strong case that the McInerneys' pretrial conduct taints their contention as invited error, we do not base our rejection on that ground alone.

One of the objections against recognition of the tort action is that it would trespass upon the proper jurisdiction of courts sitting in probate.   The nature of that jurisdiction is well settled in California.  “A complete procedure is set forth in the Probate Code by which the superior court sitting as a probate court is the forum for the probate and proof of wills (Prob.Code, secs. 361–362), the contest of wills (Prob.Code, secs. 370–385), the production of wills (Prob.Code, secs. 320–323, 613), and the establishment of lost or destroyed wills (Prob.Code, secs. 350–352).   As to those matters it may be said generally that the probate court has exclusive jurisdiction.”  (Reed v. Hayward (1943) 23 Cal.2d 336, 339, 144 P.2d 561;  see Spencer v. Crocker First Nat. Bank (1948) 86 Cal.App.2d 397, 404, 194 P.2d 775.)   By establishing a statutory scheme of specialized probate jurisdiction, California has followed a course which is common among the several States.

 It is therefore not surprising that a recurring theme of courts recognizing tort actions for the intentional interference with testamentary transfers is to condition such actions upon either the exhaustion of all remedies afforded by the statutory probate scheme, or a showing that no effective relief could have been given by the probate court.  (See McGregor v. McGregor, supra, 101 F.Supp. 848, 850;  McGregor v. McGregor, supra, 201 F.2d 528, 529;  DeWitt v. Duce, supra, 408 So.2d 216, 218, 219, 220;  Allen v. Lovell's Adm'x, supra, 303 Ky. 238, 243–244, 197 S.W.2d 424, 426, 427;  Buchanan v. Thrasher, supra, 387 S.W.2d 950, 953–954.)   The leading commentator accepts the soundness of premising a tort action for damages upon the exhaustion and/or unavailability of remedies from the probate court.   (Evans, Torts to Expectancies in Decedents' Estates, supra, 93 U.Pa.L.Rev. 187 at pp. 188, 198, 202.)   Several considerations convince us that this rule has sound foundations for application in California.

First, this state has expended a great deal of effort to establish a working system of probate.  (See Turrentine, Introduction to the California Probate Code, 52 West's Ann.Prob.Code (1956) passim.)   California insists that common law remedies must yield to statutory provisions of a like nature;  judicial remedies may supplement, but not supplant, those of the Legislature.  (See People v. Reid (1924) 195 Cal. 249, 257–258, 232 P. 457;  People v. Mooney (1918) 178 Cal. 525, 529, 174 P. 325;  Smith v. Superior Court, supra, 151 Cal.App.3d 491, 497–500, 198 Cal.Rptr. 829.)   Second, to require initial resort to the probate court is justifiable as an aspect of the plaintiff's “duty to minimize damages from the tort.”  (Creek v. Laski, supra, 248 Mich. 425, 432, 227 N.W. 817, 820.)   Third, within the context of an on-going will contest, which will constitute the usual setting for the first suspicion that a person has been injured by the intentional destruction, concealment, or spoliation of a will, the probate court is competent “to examine into the fraud question.”  (Spencer v. Crocker First Nat. Bank, supra, 86 Cal.App.2d 397, 404–406, 194 P.2d 775.)   Fourth, “[t]he best evidence of [the would-be tort plaintiff's] inability to prove the legacy would come from [a] bona fide but unsuccessful attempt to establish it in probate court.”  (Creek v. Laski, supra, 248 Mich. 425, 432, 227 N.W. 817, 820.)

Finally, it appears that California already requires that actions for legal and equitable relief take a back seat to probate.   In Reed v. Hayward, supra, 23 Cal.2d 336, 144 P.2d 561, the plaintiff was a minor who brought an action against a party who had allegedly deprived the plaintiff of a legacy by either concealing or destroying a will.   After noting the “exclusive jurisdiction” of the probate court quoted above regarding the “unprobated will,” our Supreme Court stated that “it would appear that plaintiff has chosen the wrong forum for the ․ production and establishment of a will that has been destroyed or is concealed.”  (Id. at p. 339, 144 P.2d 561.)   In Spencer v. Crocker First Nat. Bank, supra, 86 Cal.App.2d 397, 194 P.2d 775, the plaintiffs commenced an action against the executor for fraudulently obtaining releases in order to settle a claim against the estate.   The Court of Appeal affirmed the dismissal of the plaintiffs' complaint on the ground that their claim for relief had to be addressed to the probate court which was still supervising administration of the estate.  “[D]uring the pendency of the probate proceedings, all questions between the executor and the beneficiaries concerning its acts as executor and its relationship with them, are within the exclusive jurisdiction of the probate court.”  (Id. at pp. 404–406, 194 P.2d 775.)

Fidelity to the primacy of the statutory scheme compels us to require that exhaustion of a party's remedies in probate, or a showing that it was impossible to obtain effective relief from the probate court, is a condition precedent to a plaintiff's ultimate success in maintaining the tort action we recognize today.   This conclusion is not based solely on jurisdictional niceties.   If fraud is suspected prior to completion of the probate proceedings, the court conducting those proceedings is the obvious forum on which to seek relief.   That court has familiarity with the general subject matter, and it usually will have jurisdiction over all of the interested parties.   It can more efficiently resolve a claim for fraud involving that subject matter than could a court which had no familiarity with the underlying circumstances.   Except in the situation where fraud is not suspected until after the probate court proceedings have been concluded, the requirement that recourse be made to that court serves (1) the interest of all courts in the most economical use of their resources, (2) the interests of the plaintiff in the speediest possible resolution and the most complete relief, and (3) the interest of the defendant in having the plaintiff's damages minimized.

 A proper respect for the primacy of probate's jurisdiction does not, however, necessarily require that all movement on the tort action be suspended until probate completes its operations with finality.   The tort action may be “placed on the judicial backburner” (Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 207, 216 Cal.Rptr. 425, 702 P.2d 583), but it can still be kept simmering.   Once the relevant trier of fact has reached a decision regarding the validity and identity of the appropriate testamentary instrument, there is no reason why the tort action cannot be moved to the frontburner.   This bifurcational gap does not have to be prolonged.   Indeed, for the reasons discussed in the preceding paragraph, considerable logic argues that it be fleeting.   We discern no objection to a probate court, exercising its well-informed discretionary powers of consolidation, bringing the tort action forward for disposition immediately after will contest proceedings are concluded.   Phrased another way, there is no impediment to both actions being tried in successive stages by the same trier of fact in an omnibus and coordinated proceeding.

That all of this is common sense, not academic fastidiousness, is aptly illustrated by the circumstances of this case.   Suspecting that the McInerneys were either concealing the 1979 will or had destroyed it, plaintiffs had already initiated a contest of the 1970 will.   The McInerneys had countered with a contest of the 1979 will.   The existence and validity of the 1979 will were thus very much at issue before the probate court.   In resolving those issues, concerning which it then had exclusive jurisdiction, the probate court and the jury undoubtedly would (and in fact did) hear all of the evidence which these very concerned parties could produce.   A separate trial subsequently conducted before a different court would entail a totally pointless duplication of the time and effort already expended.  (See Estate of Baglione (1966) 65 Cal.2d 192, 196–197, 53 Cal.Rptr. 139, 417 P.2d 683.)   In circumstances such as these, the overlapping issues made the actions ideally suited for the consolidation permitted by Code of Civil Procedure section 1048 as incorporated by former Probate Code section 1233.   The trial court's discretionary power to order consolidation was not abused.  (See Estate of Baker (1982) 131 Cal.App.3d 471, 484–486, 182 Cal.Rptr. 550;  Neubrand v. Superior Court (1970) 9 Cal.App.3d 311, 322–323, 88 Cal.Rptr. 586;  Estate of Bliss (1962) 199 Cal.App.2d 630, 640–641, 18 Cal.Rptr. 821.)

V–VII ***


1.   During this period Mrs. Legeas was constantly reducing the size of her bequests to the McInerneys.

2.   Father Heneghan actually sought admission of the will executed in May of 1979 and a codicil executed by Mrs. Legeas the following month.   For purposes of simplicity, subsequent references to “the 1979 will” will be understood as encompassing both the will and the codicil.

3.   The parties stipulated at the outset of the trial that Mrs. Legeas' competence would not be put at issue.   Nine weeks into the trial the McInerneys asked to be relieved from this stipulation.   The trial court refused.

4.   Ms. Connolly and Father Heneghan were represented throughout these proceedings by the same counsel.   Due to their similarity of position, and in the interests of simplicity, Ms. Connolly and Father Heneghan will be collectively designated as “plaintiffs” in this opinion.

5.   Former Probate Code section 350 provided in pertinent part:  “No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator, or shown to have been destroyed fraudulently or by public calamity in the lifetime of the testator, without his knowledge;  nor unless its provisions are clearly and distinctly proved by at least two credible witnesses․”  It was repealed by the Legislature in 1983 (Stats.1983, ch. 842, § 28, p. 3038) upon the recommendation of the California Law Revision Commission that the “extraordinary proof and two-witness requirements for proof of the terms of a missing will ․ is a substantial defect in California law.”   (Tent.Recommendation Relating to Wills and Intestate Succession (Nov.1982) 16 Cal.Law.Rev.Com. (1982) pp. 2327–2328;  see id. at pp. 2315, 2488–2489.)

6.   Which provides in pertinent part:  “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties․”

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

POCHÉ, Acting Presiding Justice.

CHANNELL and PERLEY, JJ., concur.

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