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

HILL, Public Administrator, et al. v. SUPERIOR COURT IN AND FOR ALAMEDA COUNTY et al.*

Civ. 11376

Decided: March 16, 1940

Ralph E. Hoyt, Dist. Atty., J. F. Coakley, Chief Asst. Dist. Atty., and Owen Hotle, Jr., Deputy Dist. Atty., all of Oakland, for petitioner. A.J. Woolsey and Walter V. Cairns, both of Oakland, for respondents.

Petitioner seeks a writ of prohibition to restrain the respondent court from entering an order discharging an attachment in an action in which petitioner is plaintiff and H.S. Craig is defendant.

There is no dispute concerning the essential facts. Said H.S. Craig was appointed in 1935 as the executor of the last will and testament of W.F. Gibbard, deceased, and continued to act as such until his letters testamentary were revoked on December 4, 1939. Petitioner was thereupon appointed as special administrator and was later appointed as administrator with the will annexed of the estate of said deceased. On December 7, 1939, petitioner instituted the above-mentioned action against defendant H.S. Craig, being action numbered 155937 in the files of the superior court in the county of Alameda. On December 11, 1939, said H.S. Craig filed his account in the probate proceeding and the matter of the settlement of said account is still pending and undetermined. The petition shows that said action, instituted by petitioner against said H.S. Craig, was one in which the complaint alleged “a cause of action in tort for damages for the conversion of the assets of the estate, a cause of action in assumpsit for money had and received for the use and benefit of the estate, and a cause of action for an accounting”. Upon the filing of said action, plaintiff caused a writ of attachment to be issued and levied. On December 28, 1939, a motion was made to discharge said attachment upon the ground that the action was prematurely brought and that no cause of action existed or could exist until the account of said H.S. Craig has been settled by the probate court. A hearing was had and the matter was continued for further hearing, the trial court indicating its intention to grant said motion at the following hearing. Thereupon this proceeding was commenced.

Petitioner contends that the trial court was threatening to act in excess of its jurisdiction in discharging said attachment but we find no merit in this contention. The alleged cause of action for conversion would not support the issuance of the writ of attachment (Code Civ.Proc. sec. 537); the probate court had exclusive jurisdiction to settle the account of the former executor and no independent action in equity would lie to obtain an accounting (King v. Chase, 159 Cal. 420, 115 P. 207); and the alleged cause of action for money had and received was prematurely brought as the account of the executor had not as yet been settled by the probate court. Turney v. Shattuck, 96 Cal.App. 590, 274 P. 442.

The respective parties seem to be agreed that the question involved is whether the rule of Turney v. Shattuck, supra, is applicable to the action here brought by petitioner against the former executor. We see no escape from the conclusion that said rule is applicable. Petitioner calls our attention to the amended complaint which was filed in said action. In the original complaint, plaintiff alleged in the first count the conversion by defendant of property of the estate to the damage of the estate in the sum of $78,000. In the second count, plaintiff alleged that defendant had and received $95,000 for the benefit of the estate and that no part thereof had been paid except the sum of about $17,000. In the third count, plaintiff alleged that defendant had appropriated money and property of the estate, the full amount of which was unknown and could only be ascertained by an accounting. Plaintiff prayed for judgment for $78,000 and interest and for an accounting. In the amended complaint, plaintiff added certain allegations to those found in the first count of the original complaint. The new allegations showed that in May, 1939, defendant made a written statement, which is set forth in full and from which it appears that defendant had made unauthorized loans to third persons of the money of the estate to the amount of $67,955.56. He stated therein that, “I feel personally responsible for the entire sum which I loaned from the estate funds and I shall do everything humanly possible to secure the moneys to repay the full amount loaned from the estate.” It was further alleged that in November, 1939, defendant confessed to the district attorney that he had unlawfully converted “the sum of more than $70,000” from said estate and it was also alleged that he had subsequently testified before the grand jury to the same effect. The remaining counts of the amended complaint were similar to those found in the original complaint with the addition of further counts attempting to declare upon the written statement above referred to as a “contract in writing”. The prayer of the amended complaint was similar to that found in the original complaint.

It seems entirely clear from the admitted facts that nothing short of a full accounting can settle the question of the amount of the former executor's indebtedness to the estate. We are of the opinion that the fact that the former executor admitted some indebtedness is of no significance in determining the question before us as neither the acts nor agreements of the former executor or the present administrator could oust the probate court of its exclusive jurisdiction to settle the account of the former executor or confer jurisdiction upon the superior court to entertain an independent action for the alleged indebtedness prior to the settlement of said account by the probate court. The confusion which would result from permitting the determination of the amount of the indebtedness in two separate and independent proceedings is obvious and the rule of Turney v. Shattuck, supra, is a salutary one designed to avoid such confusion. In that case it appears that the judgment in the independent action was withheld until after the settlement of the account by the probate court and the filing of a supplemental complaint but it was nevertheless determined that the judgment could not be sustained as the action had been brought at a time when the court had no jurisdiction to entertain it.

Petitioner also cites section 612 of the Probate Code providing for an action by the executor or administrator of an estate against a person who “embezzles, conceals, smuggles or fraudulently disposes of any property of a decedent”. A consideration of the history of this section, the other sections of the Probate Code (see in particular secs. 524, 923 and 932) and the authorities above cited leads us to the conclusion that said section 612 may not be relied upon to justify the bringing of an independent action against the former executor prior to the settlement of his account by the probate court.

We conclude that the admitted facts show that petitioner's action was prematurely brought, at least as to any alleged cause of action which might support the issuance of the writ of attachment, and that the trial court is neither threatening to err nor to exceed its jurisdiction in discharging the attachment.

The alternative writ of prohibition is discharged and the peremptory writ is denied.

SPENCE, Justice.


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