WATERLAND v. SUPERIOR COURT IN AND FOR SACRAMENTO COUNTY et al.*
The petitioner seeks by means of a writ of prohibition to prevent the Superior Court of Sacramento County, sitting as a Probate Court in the administration of the estate of Laura Antoinette Grafmiller, deceased, from determining title to a fund of $9,052.47 claimed by him as the survivor of a joint tenancy therein which was created by the deceased prior to her death, on the ground that the probate court lacks jurisdiction to try title to property claimed by a stranger to the probate proceedings. The respondent demurred to the petition.
The petitioner qualified as executor of the will of said deceased person. He is the survivor of a joint tenancy in the fund and is therefore prima facie owner of the bank account. A dispute arose between the heirs regarding the ownership of the fund and the executor resigned before his inventory or account was filed. His resignation was held to be final. Estate of Grafmiller, 27 Cal.App.2d 253, 81 P.2d 181.
After his resignation, and before his successor was appointed or qualified, he filed two purported final accounts, neither of which was settled or approved. In neither of those accounts did he return the joint tenancy fund as property of the estate. Numerous exceptions to those accounts were filed by the heirs of the deceased. His successor, as executor of the estate, was duly appointed and qualified. Thereafter this petitioner was cited in the Grafmiller estate to show cause why he should not account to the estate for said fund of $9,052.47. A petition was filed in the estate for that purpose, alleging that the execution “of a certain purported joint tenancy agreement”, by means of which Tyre H. Waterland gained possession of the fund, was procured by fraud and undue influence and is therefore void. The petition then prayed for an order of the probate court determining that the fund belongs to the estate and requiring the holder thereof to pay it to the present executor, together with interest thereon from March 24, 1937. To that petition Mr. Waterland demurred on the ground that the probate court was without jurisdiction to determine title to the fund as against a stranger to the estate. The demurrer was overruled and he was ordered to show cause why he should not pay the money to the representative of the estate. Mr. Waterland then filed in this court a petition for a writ of prohibition to preclude the probate court from proceeding to try the title to said fund on the ground that it lacks jurisdiction.
The only issues in this proceeding are whether, under such circumstances, the probate court possesses jurisdiction to determine title to a fund in the possession of a former executor of the estate as survivor of an executed joint tenancy thereof, and whether the writ of prohibition will lie.
We are of the opinion the probate court lacks jurisdiction to determine the title to the bank account since the claimant is the prima facie owner of the fund and his resignation occurred prior to the filing of the petition in the probate proceeding. With respect to that particular money Mr. Waterland is a stranger to the estate. There is no longer a privity existing between him and the estate with respect to that fund. It was never returned in the inventory as property belonging to the estate. The facts are undisputed that he became possessed of the money as the survivor of an executed joint tenancy therein. The mere fact that the claimant to that fund formerly qualified as executor of the estate did not have the effect of waiving the lack of jurisdiction on the part of the probate court to try the title to property in which the estate is not even the prima facie owner, since his resignation terminated his fiduciary relationship to the estate. Before the estate may require the petitioner to account for that fund, it must first affirmatively prove that the joint tenancy of the account is void because it was procured by fraud or undue influence. In view of the execution of the joint tenancy agreement, the presumption is that Mr. Waterland owns the fund. Under such circumstances it appears to be clearly within the well-established rule that a probate court may not try title to property as between the estate and a stranger thereto.
The rule is well established in California that in probate proceedings title to property may not be tried or determined as between the estate, or the heirs and devisees, on the one hand, and a stranger to the estate upon the other hand. McCarthy v. McCarthy, 205 Cal. 184, 270 P. 211; Stevens v. Superior Court, 155 Cal. 148, 99 P. 512; Bauer v. Bauer, 201 Cal. 267, 256 P. 820; Estate of Wenks, 171 Cal. 607, 154 P. 24; Estate of Klumpke, 167 Cal. 415, 139 P. 1062; Guardianship of Vucinich, 3 Cal.2d 235, 243, 44 P.2d 567; 11a Cal.Jur. 94, sec. 41. When a controversy exists between the heirs, devisees or representatives of the estate of a deceased person and one who is not interested in that estate, regarding the title to property, it is necessary to resort to an action in a court of competent jurisdiction to determine the title to such property. It is true that a probate court has jurisdiction to determine the title to property claimed by the representative of an estate in his individual capacity, while he remains executor or administrator of the estate, as a necessary incident to the determination of what property is subject to administration in that estate. (Stevens v. Superior Court, supra.) The reason assigned for that rule is that the executor or administrator of an estate occupies a relationship in privity with the interests of the estate, and therefore is not in a position to maintain an action against himself to determine the title to the property which he personally claims. In other words, his individual interests and those which he represents in a fiduciary capacity as executor or administrator of the estate are in absolute conflict. Nor does section 521 of the Probate Code authorize the removal of an administrator or executor merely because he claims title to property which is also asserted by the heirs or creditors of the estate. It is apparent the very reasons assigned for vesting jurisdiction in the probate court to determine title to property under the above-mentioned exception to the general rule fails when the representative resigns his office or is removed for cause under the provisions of section 521, supra.
In the present proceeding it appears that Tyre H. Waterland resigned as executor of the estate of Laura Antoinette Grafmiller, deceased, March 4, 1937. This court determined that his resignation, pursuant to section 520 of the Probate Code, was final and conclusive. His fiduciary relationship then ceased. That decision became the law of this case with respect to his relationship to the estate. His successor was appointed and qualified August 26, 1938. There is no reason why Albert E. Stearns, the present executor of the will of said deceased, may not maintain a suit in behalf of the estate against the former executor, in a proper court, to determine the title to the bank account in question. The reason for the application of the exception to the general rule recognizing jurisdiction in the probate court to determine the title to property claimed by one who is actually serving as executor or administrator of an estate no longer exists in the present case. It follows that the probate court is without jurisdiction to try and determine the title to the bank account under the circumstances of this case.
It is true that an administrator or executor may be cited by his successor to account for property of an estate which he formerly represented after his resignation or revocation of authority occurs. Sec. 923, Probate Code; Estate of Radovich, 74 Cal. 536, 16 P. 321, 5 Am.St.Rep. 466. It is said in 1 Bancroft's Probate Practice, page 609, section 320: “Property which prima facie belongs to the estate should be retained under the control of the probate court until title is determined by proper proceedings designed to that end.”
The authority to require a representative of an estate to account to his successor after his office is terminated extends only to property belonging to the estate, or in which the estate has at least a prima facie title. It does not extend to property which never came into the possession of the former administrator or executor, and of which, on the contrary, he appears to be the prima facie owner and which is actually claimed by him in his individual capacity. The probate court has no jurisdiction to determine the title to such property or to charge it to the account of the former representative until its ownership has first been determined in a court of competent jurisdiction.
In the Radovich case, supra, upon which the respondent relies, the property which the executor was required by the probate court to account for after his resignation, consisted of certain shares of stock in a railroad company, which he had regularly included in his inventory as property belonging to the estate of the value of $250. He made no claim to the stock in his personal capacity. He merely sold it for $450 without an order of court and failed to account for the proceeds of that sale. Clearly, the proceeds of that sale of stock belonged to the estate. The order of court enforcing the former executor to account for the proceeds of sale of stock in that case did not require the probate court to first determine its title. The title to the stock was conceded. That case is not in conflict with what we have previously said regarding that question.
We are of the opinion the writ of prohibition is the proper remedy in this case. The function of a writ of prohibition is to arrest the proceedings of a tribunal exercising judicial duties which proposes to act without or in excess of its jurisdiction. Sec. 1102, Code Civ.Proc.; 21 Cal.Jur. 583, sec. 4; County of Sutter v. Superior Court, 188 Cal. 292, 204 P. 849. The Supreme Court accepted jurisdiction and considered the same question which is involved in this proceeding, upon a petition for a writ of prohibition, in the case of Stevens v. Superior Court, supra.
The real issue in the probate court in this case, as specifically set out in the petition which was filed therein, is whether that court may proceed to try and determine title to personal property held and claimed by a stranger to the estate by virtue of a joint tenancy agreement. That fact was alleged therein. Since that issue clearly appears of record the probate court is without jurisdiction to proceed. The determination of title to that property is not a proper part of the proceeding to enforce a former executor to account for property belonging to the estate under section 923 of the Probate Code. The determination of title to property under such circumstances may not be said to be merely incidental to a general accounting under that section.
It is suggested the writ of prohibition will not lie because there is a speedy and adequate remedy by means of appeal or certiorari from the order of the probate court determining the title to the bank account. It is true that a writ of prohibition will not ordinarily issue when certiorari affords a complete remedy, unless it appears that the applicant for the writ will be injured if the tribunal sought to be prohibited proceeds with the trial. Hill v. Superior Court, 21 Cal.App. 424, 131 P. 1061; 21 Cal.Jur. 585, sec. 5. The question as to whether there is a plain, speedy and adequate remedy in the ordinary course of law is largely dependent upon the facts of a particular case, the determination of which is within the sound discretion of the court. Even though there may be an appeal or a right to review by means of certiorari a judgment rendered in a suit where the inferior tribunal is without jurisdiction, prohibition may lie in the sound discretion of the court if it also appears that those remedies, under the circumstances of the particular case, are not adequate. In the concurring opinion of Mr. Justice Shaw, in the case of Glide v. Superior Court, 147 Cal. 21, at page 29, 81 P. 225, at page 228, it is said: “The question whether or not the remedy by appeal is adequate is, even in cases where jurisdiction is plainly lacking, a matter resting in the sound discretion of this court, upon the particular circumstances of each case.”
We therefore conclude the remedy of the petitioner in the present proceeding is not adequate, and that prohibition will lie to prevent the probate court from trying and determining title to the bank account in question. If the probate court lacks jurisdiction to determine title to that property under the circumstances of this case, it would be an idle, useless and expensive procedure to be compelled to account for property of which he is the prima facie owner under an executed agreement, even though that order might be reversed on appeal from the order settling the account or upon certiorari. It is apparent that on such an accounting by the probate court the petitioner in this proceeding would be deprived of the right of trial by jury. No right of trial by jury is allowed in the settlement of accounts. It is said in Estate of England, 214 Cal. 298, 5 P.2d 428, 429, in that regard: “It has several times been expressly held that, in the absence of a statute so providing, trials by jury in the settlement of accounts in probate are not allowed.”
On the contrary, in a proper action brought in a court of competent jurisdiction to recover that particular fund, the petitioner might be entitled to submit to a jury the questions of fact regarding the alleged invalidity of the agreement on the ground of fraud and undue influence. Sec. 592, Code Civ.Proc.
What we have previously said does not preclude the probate court from requiring the former executor of the estate of Laura Antoinette Grafmiller, deceased, from accounting for all other property of the estate except the bank account in controversy.
The writ is granted as prayed for and the probate court is hereby restrained from proceeding to try or determine title to the funds in the bank account.
Mr. Justice THOMPSON delivered the opinion of the court.
We concur: PULLEN, P.J.; TUTTLE, J.