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


Civ. 13130.

Decided: June 24, 1941

Otto A. Gerth, of Los Angeles, for appellant. Laurence B. Martin, of Los Angeles (Samuel Reisman, of Los Angeles, of counsel), for respondents.

An appeal is being prosecuted from an order by which the probate court granted a motion of respondents to terminate all probate proceedings and to discharge and dismiss appellant as administrator of the estate of William Robinson, deceased. There is also an appeal from a formal judgment entered after the granting of the motion.

William Robinson died on March 7, 1936, at Hendricks county, Indiana, while a resident of Indiana. At the request of D. E. Robinson, a son of decedent, Glen M. Robinson, the appellant, filed a petition for letters of administration of the estate of decedent in Los Angeles county. This petition was regularly granted by the probate court on June 22, 1937, appellant was duly qualified and letters of administration were issued to him. Minnie Lee Robinson, a daughter of decedent, was duly notified of the pendency of the proceedings but she filed no objection thereto and no appeal was taken from the order appointing the administrator, which became final. Thereafter the administrator filed his first account, which was approved by the court, and gave notice to creditors.

The respondents on this appeal are Minnie Lee Robinson, her daughter, Mrs. Pauline Mann, and Mrs. Mann's husband, Carl L. Mann. On January 4, 1939, appellant in his capacity as administrator filed an action in the superior court of Los Angeles county in which he alleged that shortly after decedent's death respondents wrongfully obtained possession of and converted to their own use property of decedent consisting of cash and United States bonds of a value in excess of $35,000 and used a part of the cash and of the bonds to purchase real estate in Los Angeles county. By this action he sought among other things to impress a trust upon this real estate. Respondents filed their answer to this action.

On March 11, 1939, respondents filed a motion in the probate court asking for the termination of the probate proceedings and for the discharge of the administrator. In support of their motion they filed affidavits showing that decedent at the time of his death had no property in the state of California. This motion was resisted by appellant, who filed affidavits showing that at the time of the petition for letters of administration property belonging to decedent's estate was located in Los Angeles county. Respondents' motion was denied on April 5, 1939, but no appeal was taken from the order of denial. On January 31, 1940, respondents filed a second motion to terminate the probate proceedings and to discharge the administrator, this motion being based upon their affidavits in which they set forth the same matters which had been set forth upon the filing of the previous motion, with the additional statements that probate proceedings were and had been pending in the state of Indiana at the time of the filing of the petition for the appointment of an administrator in California. This second motion was granted on March 6, 1940, and the administrator filed his notice of appeal from the order and from a formal judgment subsequently entered.

Two principal contentions are presented in appellant's brief: First, that in order to give the probate court jurisdiction to appoint an administrator it was not necessary to show that decedent had property in Los Angeles county at the time of his death, it being sufficient if it was shown that there was property in the county requiring care and administration when the petition for letters of administration was filed; and second, that the jurisdictional facts were established when the order appointing the administrator was made, that the order of appointment was regular on its face and became final, and that it cannot be collaterally attacked. Our disposition of the first contention makes it unnecessary to pass upon the second contention.

It is provided in section 301 of the Probate Code that letters of administration are to be granted in the superior court “of any county in which he leaves estate, the decedent not being a resident of the state at the time of his death, and having died out of the state * * *”. Respondents argue that, even if it be assumed that decedent's bonds were surreptitiously removed from Indiana and brought to California after the death of decedent, the language of the section above quoted requires a ruling that the probate court of Los Angeles was without jurisdiction to appoint an administrator because decedent did not “leave” property in Los Angeles county. Appellant refers to the rule that the probate court is without jurisdiction to determine title to property which is claimed by the estate on one hand and by third parties on the other, and argues that the code section should be given a liberal interpretation so that the administrator can present the issues concerning his allegation of the embezzlement of a portion of the estate to the proper tribunal. He refers to section 4 of the Code of Civil Procedure, in which it is provided that all proceedings under the code “are to be liberally construed, with a view to effect its objects and to promote justice”; and to section 3528 of the Civil Code: “The law respects form less than substance.”

A statement which appears to be determinative of the matter is to be found in Re Estate of Daughaday, 168 Cal. 63, 72, 141 P. 929, 933: “Still further it should be pointed out that section 1322 of the Code of Civil Procedure, touching the probate of foreign wills, and providing that administration may be had in any county in which the testator shall have left any estate, means any county in which there shall be estate of the testator at the time administration is sought.” Section 1322 of the Code of Civil Procedure, referred to in the above quotation is now section 360 of the Probate Code, which provides: “A will admitted to probate in any other state or country may be offered for probate in the superior court having jurisdiction as determined by section 301 of this code.” It will be seen that section 360 of the Probate Code makes the jurisdictional facts set forth in section 301 of the Probate Code the basis for issuing letters by the probate court. Reading these two sections together, it is apparent that the court in the Daughaday case determined that jurisdiction rests in the probate court of the county where property of the decedent be found at the time that the application for letters of administration is filed. It must be conceded, however, that the statement quoted from the Daughaday case was not necessary to a decision of the issues then before the court. For this reason we have examined the authorities of other states and find that, although there is some conflict, the more numerous and the better reasoned cases hold that the court of the state where the property of a deceased person is found at the time of the application for letters of administration has jurisdiction to grant the letters.

In Appeal of Ela, 68 N.H. 35, 38 A. 501, 502, it is said: “Assume that the probate court had no power to make the appointment, for the reason that the deceased left no estate in this county; the subsequent bringing of the property here by the administrator would confer jurisdiction of the subject–matter upon that court, and authorize it to charge him with the property, in the exercise of its common–law jurisdiction over the estates of deceased persons.” In Manning v. Leighton, 65 Vt. 84, 26 A. 258, 262, 24 L.R.A. 684, 692, the court stated: “But it is not necessary that the assets upon which administration is granted should have been within the jurisdiction at the time of the decease. The rule, as usually stated by text–writers, would seem to require this; but it is evident that an adherence to the rule as thus stated would sometimes exclude assets from administration. Certainly, a debtor would not be permitted to defeat the collection of his debt by moving from one jurisdiction to another after the death of the creditor. The subsequent creation of an obligation to be collected by the representative of the deceased presents the same necessity. The jurisdiction must exist in favor of the estate wherever legal proceedings are necessary to establish its right to property, and none but a local administrator can secure the recognition of the courts.” In Pinney v. McGregory, 102 Mass. 186, 192, 193, these statements were made by the court: “Indeed the St. of 1817, c. 190, § 16 (which included the estate of intestates already deceased, as well as of those who might die in the future), would seem to point to the time of a petition for administration, rather than the time of the death, as the time at which there must be estate within the county, in order to give jurisdiction; for the words are, ‘when any person who has died or shall die intestate without the Commonwealth shall leave estate of any description within the same to be administered,’ letters of administration may be applied for as if he had died within the Commonwealth, and the judge of probate of any county ‘wherein such estate shall be found’ shall have power to grant them. * * * To limit the power of granting administration to cases in which the goods are or the debtor resides in the Commonwealth at the time of the death of the intestate would be to deny to the creditors and representatives of the deceased, whether citizens of this or of another state, all remedy whenever goods are brought into this state, or a debtor takes up his residence here, after the death of the intestate. The more liberal construction of the statute is necessary to prevent a failure of justice.”

Respondents rely upon In re Estate of Estrem, 16 Cal.App. 563, 107 P.2d 36, 41, but we find nothing therein which is not in agreement with the above quoted statement taken from the Daughaday case. In the Estrem case an attempt was made to set aside an order of the Alameda probate court admitting a will to probate on the ground, among others, that the executor had after the admission of the will to probate filed an inventory and appraisement showing an absence of property in Alameda county. The court ruled that the order, which had become final, was regular on its face and did not appear to be void; that the proceedings failed to show that at the time of decedent's death none of his property was situated in Alameda county, since the inventory merely stated that “certain property which the court might have deemed situate in Alameda county was without value, in the opinion of the appraiser”. The issue now before the court was not passed upon or discussed in the Estrem case.

Appellant filed his petition for letters of administration for the purpose of giving him legal status to commence an action against respondents. He seeks to present to the proper tribunal the issues presented by his allegations that respondents embezzled a portion of decedent's estate and invested it in real estate situated in Los Angeles county, issues which the probate court is without jurisdiction to determine. Bauer v. Bauer, 201 Cal. 267, 256 P. 820. This he should be permitted to do. A liberal construction should be given section 301 of the Probate Code in order to prevent a failure of justice.

The order and the judgment are reversed. Appellant to recover costs from respondents.

WOOD, Justice.

We concur: MOORE, P. J.; McCOMB, J.

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