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District Court of Appeal, Second District, Division 1, California.


Civ. 18249.

Decided: December 28, 1950

C. Paul Du Bois and John E. Sisson, Los Angeles, for petitioners. Dolley, Knight, Woods & Hightower, Los Angeles, for respondent executor Milton H. Philleo. Franklin L. Knox, Jr., Los Angeles, for respondent Melvin H. Mann.

Petitioners, Clifford R. Dabney and Alice M. Dabney, allege that on February 1, 1950 they filed and instituted an action in the Superior Court of Los Angeles County to have certain rights adjudicated against the Estate of Louise E. Dabney, deceased. They prayed for declaratory relief, for the establishment of constructive and resulting trusts, to quiet title, for accounting, receiver and injunction—all with respect to properties of the estate.

Petitioners then allege that the following proceedings occurred in the estate, all of them designed to defeat any recovery petitioners may secure in their action at law:

An order for ratable distribution of $150,000 to the heirs of decedent, made August 22, 1950.

An order for ratable distribution of $150,000 to said heirs, dated August 22, 1950.

An order for ratable distribution of $300,000 to said heirs, dated September 26, 1950.

Petitioners further allege that they appeared before the Probate Court, objected to the making of said orders, and after they were made appealed therefrom; that nonetheless the executor will pay the money to the heirs before the appeals are determined.

Petitioners further allege that if such distribution is made the assets of the estate which they seek to recover will be irretrievably lost; that distribution will be made to a large number of heirs, residing in many different states, and that it will be unduly expensive, and in many cases impossible, to recover from said heirs; and that the bond of the executor being but $100,000, and his personal assets being limited, petitioners will not be able to recover damages from him in excess of his bond.

Upon these allegations an order to show cause issued and was argued, as to the issuance of the writ of supersedeas. Also an order was made temporarily staying payment of the ratable distribution.

To the petition the executor demurred and answered.

The executor in his answer alleges:

That distribution of the $300,000 ordered August 22, 1950 was made on August 28, 1950, prior to filing of appeal by petitioners, which said appeal was not taken until October 3, 1950.

That Petitioner Clifford R. Dabney has assigned to others his interest in the estate, and any recovery in his legal action, and is, therefore, not a proper party in interest in the present proceeding.

That the wife of Clifford R. Dabney, the other petitioner herein, filed no creditor's claim against the estate, and that she also is not a proper party in interest.

That in said legal proceeding demurrers to petitioners' complaint have been sustained without leave to amend, and that judgment was entered pursuant to said ruling October 6, 1950, from which judgment petitioners have appealed.

That the executor has distributed, and is now proposing to distribute only net taxable earnings of the estate to the persons entitled thereto; that the ratable distribution here questioned is to be made out of such earnings; and that any further stay of such distribution will result in loss to the estate by way of taxation.

The petition and the answer are verified. No affidavits in support of the averments of either have been filed. And, of course, no testimony has been taken by this Court.

A writ of supersedeas may issue when it appears necessary to preserve the rights of a litigant until final determination of his appeal. Dry Cleaners & Dyers Inst. v. Reiss, 5 Cal.2d 306, 54 P.2d 470.

The showing of lack of interest of petitioners is not sufficient to justify denial of the writ. The judgment against them is now being appealed from.

Respondent executor's allegations that the two ratable distributions of $150,000 each are to be paid out of current net earnings are uncontroverted. Therefore, no detriment to petitioners appears which would require issuance of the writ. Whether the circumstances of a particular case justify the issuance of the writ lies in the sound discretion of the court. Kim v. Chinn, 20 Cal.2d 12, 123 P.2d 438.

It is ordered that the demurrer be overruled; that the order staying payment of distribution be dissolved; and that the petition for the writ of supersedeas be denied.

DRAPEAU, Justice.

WHITE, P. J., concurs.