IN RE: GUARDIANSHIP OF HUDELSON.*

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District Court of Appeal, Third District, California.

IN RE: GUARDIANSHIP OF HUDELSON.*

Civ. 6545

Decided: January 25, 1941

Mark A. Joseph, of San Anselmo, for appellant. Frank B. Collier and Hawkins & Hawkins & Cardoza, all of Modesto, for respondent.

Thirza L. Hudelson, the daughter of Forrest M. Hudelson, an incompetent person, has appealed from a portion of an order which she procured pursuant to section 1558 of the Probate Code to pay her from the excess income from her father's estate the sum of $50 per month, until the further order of the court, as necessary maintenance. That portion of the order from which this appeal was perfected is as follows: “and provided, further, any sum or sums of money paid by the guardian to petitioner under the provisions hereof shall constitute an advance against any inheritance petitioner might receive upon the death of her father, and the guardian of said incompetent shall keep an account of all sums so paid.” It is contended the above-quoted portion of the order is unauthorized by law and void.

Upon the hearing of the application for allowance from the estate of petitioner's father under section 1558 of the Probate Code, the court found that she is the daughter and next kin of the incompetent person; that there is a surplus income from his estate not necessary for his maintenance; that the ward would have contributed to his daughter's support except for the fact that he is of unsound mind; that the petitioner was a resident in the household of the ward, and that a reasonable portion of the surplus income from the estate should be paid to the daughter. It was then ordered that Thirza M. Hudelson be paid $50 per month “until the further order of this court”, in addition to her room and board, while she remains in the household of her father, or in lieu thereof, the sum of $100 per month if she resides elsewhere. It was further provided that all such payments shall be deemed to be advancements on account of any inheritance which she might receive from her father's estate at the time of his death, and that unless the petitioner shall elect in writing, within thirty days from the date of the order, whether she will remain in the home of her father or live elsewhere the petition will be deemed to have been denied.

The appeal was perfected under section 953a of the Code of Civil Procedure. It is presented on a typewritten copy of the judgment-roll, duly certified by the clerk and by the trial judge. No bill of exceptions was settled, and no phonographic copy of the proceedings of the trial was procured. The evidence which was adduced at the hearing is not before this court. It is conceded the appellant did sign a written election to remain in the home of her father, in compliance with the court order. But we are not informed of the exact contents of that document. It is not a part of the record on appeal. No motion for diminution of the record, to supply that instrument, was made. We have no means of determining what rights are determined by that written instrument. We must presume it does not contain the consent of the petitioner that her payments shall constitute advancements to be charged to her future share in her father's estate, for the court order requires no such acknowledgment.

The respondent contends that this appeal is ineffectual for the reason that no bill of exceptions was settled, and because the filing of a typewritten transcript of the judgment-roll is in violation of rule I, section 1, of the Rules for the Supreme Court and the District Courts of Appeal. It is further contended that section 1558 of the Probate Code, under which the application for an allowance was made, confers upon the court a discretion to impress payments allowed upon the prospective interests of heirs, as advancements. In support of that theory it is suggested that that section of the code specifically grants the court discretion to determine whether any allowance shall be made, and, if so, to designate the amount thereof.

It has been frequently held that, since the adoption of the amendment to section 953a of the Code of Civil Procedure, in 1915, an appeal may be presented and heard upon a typewritten transcript of the judgment-roll, duly certified by the clerk and the trial judge, even in the absence of a settled bill of exceptions or of a phonographic report of the trial as therein provided. Ramsay v. Rodgers, 189 Cal. 100, 207 P. 516; Benson v. Gardner, 14 Cal.2d 526, 95 P.2d 136; Charles v. City of Crescent City, 12 Cal.2d 241, 83 P.2d 34. The respondent's claim that this appeal is ineffectual is therefore without merit.

The court was without authority to create an advancement to be paid to the daughter from the estate of her incompetent father under the provisions of section 1558 of the Probate Code, or to direct that the allowance should be made a charge against her future inheritance of any portion thereof. The statute contains no such provision. It merely gives the court discretion to allow a reasonable sum to be paid to the next of kin from the surplus income of the estate of an insane or incompetent person, which surplus is not required for the maintenance of the ward, conditioned upon first determining that “the ward would * have aided [the petitioner] if said ward had been of sound mind”. The only discretionary authority of the court under such circumstances is found in the following language quoted from that section: “The granting of such allowance and the amounts and proportions thereof shall be discretionary within the court, but the court shall give consideration to the amount of surplus income available after due provision has been made for the proper support and maintenance of the ward, to the circumstances and condition of life to which the ward and said next of kin have been accustomed and to the amount which the ward would, in the judgment of the court, have allowed said next of kin, had said ward been of sound mind.”

An advancement is defined in 1 American Jurisprudence, at page 715, as follows: “An advancement is a perfect and irrevocable gift, not required by law, made by a parent, during his lifetime, to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor's estate that the donee would be entitled to on the death of the donor intestate.”

Section 1397 of the Civil Code, which defined the nature of advancements, was repealed at the time of the adoption of the Probate Code. Section 1050 of the last-mentioned code now contains the only statutory requirements with relation to the creation of advancements.

Where the statute provides the method for creating advancements to be charged to the prospective shares of heirs, that procedure is the exclusive manner of creating such advancements. It is the uniform rule that advancements to an heir which may have the effect of charging his share of the estate with payments previously made to him, depends upon the intention of the testator or donor. That intention must be established by satisfactory evidence in order to charge the payments as advancements. Estate of Spreckels, 6 Coffey Prob.Dec. 375; 1 Cal.Jur. 477, sec. 2; 1 Am.Jur. 720, secs. 11 and 12; 26 A.L.R. 1089, note. In conformity with that rule, section 1050 of the Probate Code was adopted. It provides that advancements to an heir may be established only by proof of that intention on the part of the testator or donor expressed in writing, or by written acknowledgment thereof signed by the donee. That section reads: “A gift before death shall be considered as an ademption of a bequest or devise of the property given; but such gift shall not be taken as an advancement to an heir or as an ademption of a general legacy unless such intention is expressed by the testator in the grant or otherwise in writing, or unless the donee acknowledges it in writing to be such.”

Quoting with approval from Beebe v. Estabrook, 79 N.Y. 246, it is said in Re Farmers' Loan & Trust Co., 181 App.Div. 642, 168 N.Y.S. 952, 955, with respect to the exclusive control of the statute over the means of determining the existence of advancements that: “ ‘The right to charge advancements made by an intestate to his children against their distributive shares in his estate depends upon positive law, and the statute regulates the right and prescribes the circumstances and limitations under which the right exists.’ ”

In the absence of a statute authorizing the court so to do, it has no power to impress payments from the estate of an incompetent person upon the prospective shares of the heirs or next of kin as advancements. It is apparent that such an order would lack the required proof of the intention of the donor to create advancements to be charged against the interests of the heirs. The statute confers upon the court no power to determine what the intention of an incompetent person might be with respect to the payment of allowances to needy relatives. After a person has been declared incompetent he is incapable of determining how his estate shall be disposed of, or whether payments to needy relatives shall be made as mere advancements.

Usually the question as to whether payments to heirs shall be charged against their interests in an estate as advancements is determined by the court at the time of distribution of the estate. Sec. 1054, Probate Code; 3 Bancroft's Probate Practice, p. 1880, sec. 1143.

The respondent asserts that the appellant's signature to the written instrument of election required by the court constitutes an acknowledgment on her part, in conformity with the provisions of section 1050 of the Probate Code, that the payments to be made shall be charged against her interest in the estate as advancements. The appellant admits that she signed the document as required by the court, but declares that it merely consists of an election on her part to remain in the home of her father, and that it contains no acknowledgement or consent that the payments would constitute advancements to be charged against her as an heir of her father's estate. An examination of the challenged portion of the court's order discloses the fact that the petitioner was not required to sign a written acknowledgment that the payments would be considered as advancements. It merely required her to sign a written “election” within thirty days from the date of the order, with respect to “one of said alternatives” as to whether she would remain in or out of the home of her father. The reason for that requirement, as appears from the petition, was that the petitioner had previously resided with her father for several years and had rendered personal aid to him. It was desirable that she should continue to render that service. The determination as to whether she would remain in her father's home, or elect to live elsewhere fixed the amount of allowances to be received by her under the order of the court.

That portion of the order which clearly shows that the court did not ask nor require the petitioner to sign a written acknowledgment that her payments would constitute advancements reads as follows:

“It is hereby ordered that in the event petitioner continues to reside in the household of her father, she shall receive room and board, together with a monthly sum of $50.00 in cash, * until the further order of this court; or in the event petitioner elects to reside elsewhere she shall receive in cash the sum of $100 per month * until the further order of this court; provided, however, petitioner shall, within thirty days from this date elect in writing and file in this proceeding her acceptance of one of said alternatives [with respect to her future residence] * and provided, further, that any sum or sums of money paid by the guardian to petitioner under the provisions hereof shall constitute an advance against any inheritance petitioner might receive upon the death of her father, and the guardian of said incompetent shall keep an account of all sums so paid.

“It is further ordered that if petitioner fails to make an election within the time * as herein required * her petition for allowance shall thereupon be deemed denied.”

It will be observed the “election” which is required by the clear language of the court order has no application to the subsequent declaration that the payments shall be deemed to constitute advancements against any inheritances she might receive from the estate at the time of the death of her father. In the absence of the written document determining petitioner's choice with respect to her future residence, which is not before this court, we must assume the petitioner merely signed the written declaration of choice of residence, as required by the court, and that she did not voluntarily include therein an acknowledgment not required by the court that the payments might be considered as advancements. The written document, signed at the request of the court, subsequent to the rendering of the order for allowances, was not a part of the evidence adduced at the trial. We may therefore not assume, in support of the judgment, that the written document contained an acknowledgment of advancements, merely because it does not appear in the record on appeal. The court made no finding that such an acknowledgment had been executed, or that it would be required. Section 1558 of the Probate Code, under which the order for allowances was made, does not authorize the court to grant a petition for payments from the estate of an incompetent person, conditioned upon their becoming advancements. If the respondent assumes that the appellant voluntarily signed a written acknowledgment of advancements in conformity with section 1050 of the Probate Code, after the order for allowances was made, it was his duty to offer evidence of that fact by a motion for diminution of the record to present that document to this court. No such motion was made.

Section 1050 of the Probate Code is the only statutory provision of the California laws with respect to the creation of advancements. That section requires proof of the intention of the testator to create advancements, to be shown by his written declaration to that effect, or by written acknowledgment of the donee. Neither alternative has been complied with in this case. The incompetent person was incapable of either consenting to the payments or legally designating them as advancements. The petitioner signed no such acknowledgment. There is an absolute absence of compliance with the statute creating advancements.

Since the court was without authority to make an order of allowance from the estate of the incompetent person subject to the declaration, “and provided, further, any sum or sums of money paid by the guardian to petitioner under the provisions hereof shall constitute an advance against any inheritance petitioner might receive upon the death of her father, and the guardian of said incompetent shall keep an account of all sums so paid”, the order should be modified by striking therefrom the foregoing quoted language, from which portion of the order this appeal was perfected. It is so ordered.

THOMPSON, Justice.

We concur: PULLEN, P.J.; TUTTLE, J.