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District Court of Appeal, Second District, Division 2, California.


Civ. 13567.

Decided: June 16, 1942

Winterer & Ritchie, of Los Angeles, for appellant. Robert M. Kaufman and J. B. Mandel, both of Los Angeles, for respondent.

This is an appeal by an attorney in his capacity as executor and as residuary legatee of a will made by one of his clients. The trial court found the executor was guilty of fraud in procuring upon his ex parte application a construction of the will by the probate court which eliminated the legal rights of respondent, a substituted legatee. The facts found by the trial court which were sustained by evidence and so far as need here be stated were these:

The decedent Rice's will was drafted by appellant's secretary, who was an attesting witness to it. It was executed in January, 1931, when the testator was sixty–five years old. He died by suicide in August of the same year. By the terms of the will decedent bequeathed one–sixth of his estate to his cousin Kate Chase (the mother of respondent, Edith Larrabee), another one–sixth to another cousin, Mary Tracy, both described in the will as living in Northfield, Vermont, one–third to various local charitable organizations and the remainder to his executor. The executor named is the appellant. The will contained a clause reading as follows: “I hereby generally and specifically disinherit each any and all persons whomsoever claiming to be or who may be lawfully determined to be my heirs at law, except otherwise mentioned in this will,” and a further clause stating that testator's wife was not “to participate in any manner or form in my estate” because of the provisions made for her in a property settlement agreement.

At the time the will was executed the cousin Kate Chase, named in the will, was dead, but she left surviving her a daughter, the respondent herein, a resident of Hardwick, Vermont. On October 29, 1931, the executor wrote Mrs. Larrabee stating he had been informed that her mother had died several years ago, and that a client of his who was related to her mother “was anxious to get in touch with her mother.” He requested that she write him when and where her mother died, and this she promptly did. Not until March, 1932, four months later, did the executor again write Mrs. Larrabee, when he inquired if she knew Mark H. Rice who had formerly lived in Vermont, and, if so, if she knew his relationship to her mother, Kate Chase. His letter said nothing about Rice having died or that he had left a will, or the purpose of the inquiry. Having received a prompt reply to this letter, appellant then wrote Mrs. Larrabee stating that Rice had died leaving a one–sixth interest in his estate to her mother and a like interest to Miss Tracy. He went on to say: “Inasmuch as your mother is now deceased, the one–sixth that would have gone to her, had she been living, we think will revert to you. The estate is now in litigation, so we are unable at this time to distribute the same, but are sending you a copy of the will.”

In response to a letter from Mrs. Larrabee dated April 16, 1932, inquiring as to the status of the estate, appellant replied that the estate had been in litigation for six months, owing to a contest by the divorced second wife of the testator; that because of the contest it had been necessary to employ counsel and that “a hard bitter fight was waged for the purpose of protecting the beneficiaries interested. * * * We are enclosing you a copy of the inventory and appraisement of the estate. * * * In addition to this there is a trust fund, which was created by Mr. Rice during his lifetime, which in turn will be distributed to the beneficiaries named in the will, which is your mother and aunt, and the charitable institutions and myself as you will note, in the will.”

In 1934, in response to a letter from an attorney at Hardwick, Vermont, written in Mrs. Larrabee's behalf and inquiring as to the present status of the estate, the executor wrote that the estate was in litigation and that it had cost several thousand dollars in attorneys' fees and expenses; that while the litigation had been successful, it was impossible to convert the property into cash at the time. He then went on to say: “Mrs. Larrabee may have told you that her mother and aunt were left one–third of the estate, Mrs. Larrabee's mother's share may revert to her by law of succession, one–third going to charitable institutions in this state and the residuum to myself. Am also the Executor of the Will. * * * You may be assured that everything is being done in the interest of the beneficiaries under the will and am just as anxious for distribution as anyone. * * * If there is any further information that you may desire at any time will be glad to write you.”

No further letters went forward from the executor to Mrs. Larrabee or her attorney until in August, 1937, when in response to an inquiry from Mrs. Larrabee his secretary wrote that because of the executor's absence she would endeavor to respond to it. Much of this letter was in defense of her employer to charges contained in Mrs. Larrabee's letter. The secretary stated that the executor planned shortly to file a petition for ratable distribution, and accordingly that Mrs. Larrabee should secure a certified copy of her birth certificate and of her mother's death certificate, so that these might be filed with the petition showing the requisite proof of death of her mother “and your heirship.” The letter closed with the statement that the writer would call the executor's attention to the letter on his return.

Under date of September 1, 1937, an attorney at Portland, Maine, wrote the executor in behalf of Mrs. Larrabee, stating that she had received a citation from the board of supervisors of Riverside County, California, with reference to an action affecting property of the estate, and that he was of the opinion that perhaps an appearance should be made. The executor claims to have written a reply to this letter, but the testimony is that it was not received. The purported copy of the letter offered by the executor in evidence recites that the latter was anxious to liquidate the estate as soon as possible, that the Riverside matter was being taken care of by the attorneys for the estate and that he was expecting to file an account current for ratable distribution and a construction of the will, “owing to Kate Chase, one of the beneficiaries, having passed away quite some years prior to the execution of the will by Mr. Rice.” Nothing was said in the letter to the effect that the executor would ask a construction eliminating Mrs. Larrabee's right to take under the will.

The executor's third account current, which was verified on September 29, 1937, and filed with the probate court, included therein a petition for a construction of the will, for a ratable distribution and for extraordinary and statutory attorneys' and executor's fees. In this account the executor alleged, on information and belief, that the bequest to Kate Chase had lapsed because she had died prior to the execution of the will and because the will specifically disinherited all persons not specifically named therein; that the testator, by the language used in the will, intended the bequest to Kate Chase to lapse upon her death and not to pass to any of her lineal descendants. No actual notice was given by letter or otherwise to Mrs. Larrabee or her attorney that the third account current had been filed or that it sought a construction of the will eliminating any right on her part to share in the estate. The only notice given was the statutory ten–day notice posted by the clerk of the court upon the bulletin board of the courthouse in Los Angeles County. The petition for construction of the will did not disclose that the executor had been in communication with Mrs. Larrabee or her attorney, or that the executor by his letters had led Mrs. Larrabee to believe that she was entitled to the bequest made to her mother. Moreover, the record does not disclose that any such information was given orally to the probate judge. The first knowledge Mrs. Larrabee had as to what had transpired came from her Los Angeles attorney, whom she employed to look after her interest in the estate subsequent to the time the order was made. This attorney ascertained the facts on December 15, 1937, just one week before the time for taking an appeal from the order would expire.

The facts which we have narrated stand undisputed; and as these, taken alone, are sufficient for a decision of the case and point unerringly to the decision that must follow, we shall have no need to consider other facts which it is claimed were inadmissible, nor the further claim that certain findings are not sustained by the evidence.

Summarized, the contentions presented to us by the executor are as follows: (1) That the testator by the language of his will intended that the named legatee, Mrs. Chase, should take only if she was living; but if she were not, that her daughter or a substitute legatee should not succeed to the legacy; (2) that the only duty owed by the executor to the daughter, Mrs. Larrabee, was to have her right to take as substitute legatee determined by an order of court, without any notice to her other than that of posting a notice in accordance with Probate Code, section 1200; (3) that the executor was not guilty of extrinsic fraud of a character sufficient to avoid the order made by the court on his application, wherein he contended that Mrs. Larrabee was not entitled to take under the will because (a) he did nothing to prevent her from taking timely action to redress her rights, if any she had, and (b) she was obligated to take affirmative action to protect her own rights and not rely upon him to protect them; and (4) that Mrs. Larrabee was guilty of laches and, moreover, failed to take the proper procedure to vindicate her rights.

Appellant's contention that the testator intended by the language of his will and his declarations (which were inadmissible) to exclude respondent therefrom may not be made here. After respondent filed her complaint in this case appellant filed a demurrer to it, and as ground therefor contended that a proper construction of the will required a holding that she was not entitled to maintain the action. The trial court sustained the demurrer and judgment was entered thereon. On appeal to this court (Division One) it was determined that respondent was entitled to take under the will and so the case was reversed upon that and other grounds. As the question now raised on this appeal was necessarily in issue and determined on that appeal, the decision became the law of the case and is not open to debate. Reclamation District No. 3 v. Goldman, 65 Cal. 635, 4 P. 676. And even if it were, the contention as made is obviously without merit (In re Estate of Pew, 10 Cal.App.2d 41, 50 P.2d 1045; Larrabee v. Tracy, 39 Cal.App.2d 593, 104 P.2d 61––the instant case on its prior appeal; In re Estate of Tibbetts, 48 Cal.App.2d 177, 119 P.2d 368), and requires no discussion.

Before proceeding to a consideration of the remaining contentions of appellant it is well to have in mind certain legal principles which we deem to be controlling. Initially we desire to make it plain that an executor or administrator occupies a position of the highest trust and confidence, not only to the creditors and beneficiaries of an estate but to the court as well, and so he is required to act in entire good faith. While an executor is not technically a trustee, yet his position is analogous to that of a trustee of an express trust. He is the representative not only of the testator but of the creditors, legatees and distributees. Accordingly an executor is a trustee in the broadest sense and is held to the same high and strict accountability of a trustee. In questions relating to heirship he must stand indifferent between the contestants (Roach v. Coffey, 73 Cal. 281, 14 P. 840); but where he initiates questions of heirship, through a report or upon an application for a construction of the will––as an executor may do and a legatee may not, except through a petition for heirship in a separate adversary proceeding––the executor must make a full and complete disclosure to the court. The court is entitled to have all the information which is available to its executor, in order that it may not only have the facts upon which to base its adjudication but so it may determine what, if any, further notice should be given to the parties in interest. Prob.Code, § 1204.

By the statutes of this state the only notice required on the application of an executor to the probate court seeking a construction of a will––that may completely divest a beneficiary thereof of a valuable vested right in the decedent's estate––is that ten days before the hearing, regardless of where the beneficiary may live, the clerk of the court post on the bulletin board of the courthouse a perfunctory notice stating that on a particular day, at an hour and place named, the court will construe the will. When regard is had to the fact that on every court day the clerk in Los Angeles county posts in excess of one hundred notices issuing out of the probate court, on some one of seven permanent metal hooks on the bulletin board, it is evident that a notice is scarcely more than posted before it is buried under an avalanche of other notices. As a practical matter, the possibility of receiving notice posted on such a board is practically nil. Posting in pioneer localities, where the court bulletin board was one of the chief sources of entertainment, may well have yielded information akin to due process. But posting of legal notices today on a bulletin board in a metropolitan center is but paying lip service to a past era when such posting was calculated to and probably did give notice of a kind. But to contend that such posting is in reality calculated to give notice today is a delusion. All that can be said for it is that it keeps up a tradition and is supposed to meet the requirements of due process, which demands that before one may be divested of his property or his legal rights he must be given the type of notice that is reasonably calculated to give him actual knowledge of the proceedings and a reasonable opportunity to be heard. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357. This rule of due process is as applicable in actions in rem or quasi in rem as in actions in personam. Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520. In the Roller case an action in rem was instituted in Texas to foreclose a real estate mortgage against a non–resident Virginian who was the owner of the land and the mortgagor. While process was served personally on the non–resident owner in Virginia six days prior to the hearing in Texas, it was held wanting in due process even though the state statute required only five days' notice.

That the question of the reasonableness of the notice provided for by state statute in in rem proceedings involves a vital element of due process, and that the decision of the state is not binding on the federal court, was held in Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 1112, 38 L.Ed. 896. In that case a petition for administration was filed in the probate court alleging that Scott had mysteriously disappeared more than seven years before and had not been heard from. Notice by posting as required by statute was duly made, and on the hearing the court found that Scott was dead and appointed an administrator for his estate. The administrator sold the land to defendant McNeal, following strictly the statutory proceedings in that regard, and received from McNeal the sale price. The Supreme Court of Washington held that as the proceedings were substantially in rem the probate court acquired complete jurisdiction by the posting of the notices to enable its administrator to vest complete title in McNeal. In reversing, the Supreme Court of the United States said:

“Upon a writ of error to review the judgment of the highest court of a state upon the ground that the judgment was against a right claimed under the constitution of the United States, this court is no more bound by that court's construction of a statute of the territory or of the state, when the question is whether the statute provided for the notice required to constitute due process of law, than when the question is whether the statute created a contract which has been impaired by a subsequent law of the state, or whether the original liability created by the statute was such that a judgment upon it has not been given due faith and credit in the courts of another state. In every such case, this court must decide for itself the true construction of the statute. Huntington v. Attrill, 146 U.S. 657, 683, 684, 13 S.Ct. 224, [36 L.Ed. 1123, 1133]; Mobile & O.R. Co. v. Tennessee, 153 U.S. 486, 492–495, 14 S.Ct. 968, [38 L.Ed. 793].

“No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.

“The words ‘due process of law,’ when applied to judicial proceedings, as was said by Mr. Justice Field, speaking for this court, ‘mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution––that is, by the law of its creation––to pass upon the subject–matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance.’ Pennoyer v. Neff, 95 U.S. 714, 733, [24 L.Ed. 565, 572].

“Even a judgment in proceedings strictly in rem binds only those who could have made themselves parties to the proceedings, and who had notice, either actually or by the thing condemned being first seized into the custody of the court.”

In connection with the last phrase in the opinion just quoted from it may be observed that it is now well established that the mere fact that property of the defendant has been seized and is in the custody of the court does not authorize an adjudication thereon by the court without further notice to him. Woodruff v. Taylor, 20 Vt. 65, 76. Cf. Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520.

The requirements of due process, it may be observed, are not bettered by the fact that our statute provides that an interested party may by service of notice upon the executor compel him to mail copies of all notices in the estate as they are posted on the bulletin board. So far as due process is concerned, the burden rests on the actor to give adequate notice to one whom it is sought to bind, and not on the latter to act under a statute so he may receive notice. The practical value of this particular statute lies in the fact that a beneficiary who proceeds under it will receive the scant information given by a posted notice. But as the statute takes no account of distances, a beneficiary living in an eastern state would be hard put to make a timely defense or objection. No doubt the Legislature in enacting the statute had in mind that in many instances notice of hearings on many of the accounts, reports, and petitions made in an estate would be of little, if of any, interest to creditors generally, and oftentimes not to the beneficiaries, and so they should be given notice only when they requested it, except so far as the court on a hearing might direct additional notice, as it is empowered to do. Prob. Code, § 1204.

While we have no need here to express an opinion as to whether the court herein did or did not have jurisdiction for want of a service that met the requirements of due process, as the case may well be turned upon simpler issues, yet we have thought it important to say what we have on this subject as there seems to be a rather general notion that any notice prescribed by a state legislature with respect to in rem or quasi in rem proceedings is unfettered by the due process clause of the federal Constitution, Amend. 14. Counsel may find it to their advantage in the long run to request the court to order additional notice, as it may under the statute, and not rely on the minimum notice required by statute.

Assuming for the purposes of this case, without so deciding, that the ten–day posted notice in the circumstances meets the requirements of due process, we turn to the contention that the executor was not guilty of extrinsic fraud and accordingly that respondent is bound by the order and decree. To sustain this contention appellant argues that his letters to respondent did not represent that she was entitled to take as a beneficiary or that he would protect her interests, if any she had, and that he did nothing to prevent her from taking timely action to sustain her claim. Moreover, he urges that her last letter to him indicates that she was placing no reliance upon him. A most casual reading of the letters discloses that appellant takes an altogether too narrow view of his conduct. It is clear from the letters that appellant was guilty of extrinsic fraud and that the trial court was justified in so finding. But quite apart from the extrinsic fraud, the trial court was justified in vacating the order and decree on the ground that the executor had not made to the court a full and fair disclosure of rights of respondent. The petition for construction of the will did not disclose in substance or at all the representations and statements made by the executor to the beneficiary, or even that he had communicated with her. To the beneficiary he had the obligations of a trustee; to the court, the duty of a full and complete disclosure to aid it in its adjudication and in its concomitant determination as to whether additional notice was not required, either from the standpoint of due process or of natural justice. Whether a failure of this obligation of the executor to the court as an officer of it may be classed as extrinsic or intrinsic fraud, or an exception to the rule of intrinsic fraud, it is nevertheless well established that it is a fraud upon the court and requires no specific label. See note, 5 A.L.R. 672. Here the executor in his capacity of residuary legatee was unjustly enriched by the construction placed by the court upon the will upon his ex parte showing, to the impoverishment of the legatee entitled to her legacy. It was a fraud of the most serious nature. It involved not only a breach of fiduciary duty to the respondent but a breach of duty to the court.

The contention that Mrs. Larrabee should have appealed from the order of the court, or at least should have challenged it by a motion under the provisions of section 473 of the Code of Civil Procedure, inasmuch as she had a period of four months after notice of the order to have done so, and that her action in equity, instituted more than eight months after the order was made, should be deemed barred by her laches, is without merit in any aspect. To sustain the contentions thus made appellant invokes the time–honored principle that one may not proceed in equity where the remedy at law is adequate. But this principle, well established in the law, is not an unvarying shibboleth and may be invoked only in its proper setting. It has no application to the facts of this case. Purinton v. Dyson, 8 Cal.2d 322, 65 P.2d 777, 113 A.L.R. 1230. Where, as here, the contention is, and rightly, that the executor was not only guilty of extrinsic fraud against the legatee but that he violated his duty as executor, not only to the legatee but to the probate court as well, redress lies by action in equity as well as by appeal or by motion. Moreover, it was long ago determined that the remedy provided by section 473 of the Code of Civil Procedure is not exclusive but cumulative. Baker v. O'Riordan, 65 Cal. 368, 4 P. 232.

Judgment affirmed, costs to be taxed against appellant in his individual capacity.

HANSON, Justice pro tem.

MOORE, P. J. and McCOMB, J., concurred.