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District Court of Appeal, Third District, California.


Civ. 6232

Decided: June 03, 1939

Busick & Busick and O.F. Meldon, all of Sacramento, for petitioner. Johnson & Curtwright, of Sacramento, for respondents. Evan J. Hughes and Charles A. Bliss, both of San Francisco, amici curiae.

On petition for rehearing our attention is called to certain omissions and inaccuracies which occurred in reciting the facts in our opinion which appears in 90 P.2d 344. While we believe these changes are immaterial to the determination of the issue involved on this proceeding, it is ordered that the opinion be and it is hereby modified as follows:

On page 347 of the above citation, line 25 from the top of the second column, strike out the figures “1937” and insert in lieu thereof “1938”. On page 348, line 1 at the bottom of the second column, strike out the words “injured by being”. On page 349, line 12 from the top of the first column, strike out the word “would” and insert in lieu thereof the word “might”. On page 346, line 5 of the second column, following the citation of “Estate of Grafmiller, 27 Cal.App.2d 253, 81 P.2d 181”, add the following: “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.”

It is strenuously urged that the opinion is contrary to law. From elaborate arguments in two briefs it appears that the opinion is misunderstood in some respects. The material question which is determined in the opinion is very simple. Apparently that precise question has not arisen nor has it been previously decided in any California authorities. The question is this, has the probate court jurisdiction to try and determine title to property which is claimed in good faith by an executor of an estate in his individual capacity after his resignation, and after the appointment and qualification of his successor, or must the title to property, under such circumstances, be then determined in either a court of law or equity? We have held in accordance with the generally accepted rule that the probate court lacks jurisdiction under such circumstances to try or determine title to such property. It is forcefully and sensibly argued that section 520 of the Probate Code provides that an executor may resign “to take effect” only “upon the settlement of his accounts”; that after his authority ceases he may be cited by his successor to account to the probate court for all property belonging to the estate which came into his hands (sec. 923, Probate Code), and that the right to enforce an accounting confers jurisdiction on the probate court to determine all facts incident thereto even to the trying of title to property contrary to the general rule. These contentions, however, extend the exception to the general rule above mentioned far beyond any decision of the Supreme Court which has been rendered. We are of the opinion that when an executor has resigned and his successor has qualified, that in contemplation of law, he is no longer executor of the estate, but on the contrary that his individual claim to property in good faith must then be determined in another tribunal of competent jurisdiction, and that the probate court loses its jurisdiction to try title to such property. The reason for that conclusion, as expressed by the authorities is that the obstacle preventing an executor from bringing an action against himself since he may not become both a plaintiff and a defendant in the same action, has been removed by his resignation and it becomes the duty of the acting executor or administrator to then bring suit against him in a proper court to determine the title.

The cases relied on by the respondents are Estate of Vucinich, 3 Cal.2d 235, 44 P.2d 567; Bauer v. Bauer, 201 Cal. 267, 256 P. 820; Stevens v. Superior Court, 155 Cal. 148, 99 P. 512; Estate of Ginsberg, 11 Cal.App.2d 210, 53 P.2d 397, and Estate of Radovich, 74 Cal. 536, 16 P. 321, 5 Am.St.Rep. 466. None of these cases are in point. In these cases the executor or guardian claiming the property involved remained as representatives of the estates. They had not resigned. Their successors had not been appointed as in the present proceeding. In the Radovich case the former executor never claimed title to the railroad stock in question. He merely claimed it had no value.

In Estate of Ginsberg, supra, cited by respondents, the jurisdiction of the probate court was neither challenged nor considered. In that case the executor does not appear to have resigned.

Those cases merely reaffirm the well-recognized rule that while the representative is acting for the estate and his privity to the probate proceedings continues to exist the probate court may therefore determine title to property which he claims. It is invariably asserted that the power to determine title to property exists in the probate court as against an executor. That is the limitation of its authority in that respect. When he is no longer executor, that authority ceases, and the probate court loses its jurisdiction to try title. This court has definitely determined in 90 P.2d 344, that Waterland is not the executor of the estate of Grafmiller, deceased. We believe that our opinion has drawn the proper distinction between the cases, and that the probate court lacks jurisdiction to try or determine title to the bank account in dispute.

With the modifications enumerated, the petition for a rehearing is denied.


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