IN RE: HAROOTENIAN'S ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: HAROOTENIAN'S ESTATE.

Civ. 4062.

Decided: March 14, 1951

Philander Brooks Beadle, San Francisco, Morton L. Silvers, San Francisco, for appellant. Leon A. Blum, San Francisco, David E. Peckinpah and L. N. Barber, Fresno, for respondents.

Kazar Harootenian died on March 3, 1947, and his will was admitted to probate on May 12th of that year. Decedent's surviving heirs were his four children, George Harootenian, Agnes Philliposian, Syble Janigian and Samuel A. Harootenian. The will bequeathed $1,500 to Samuel Harootenian and the residue of the estate to Agnes Philliposian. Syble Janigian and George Harootenian were expressly disinherited, however, George Harootenian was named as executor.

On November 10, 1947, appellant filed a petition for revocation of the probate of the will on behalf of her son, Haig Harootenian, as guardian ad litem. The petition for contest alleged, among other things, that the contestant was a legatee under a prior will; that the signature of the decedent to the will was procured by undue influence; and that the decedent at the time was physically and mentally ill.

On March 28, 1949, appellant, Jean Harootenian, the wife of George Harootenian, levied, under the provisions of Code Civ.Proc. section 561, upon the interest of George Harootenian in decedent's estate. The levy was made pursuant to a writ of execution based upon a separate maintenance decree. On the same day, the probate court made its order authorizing Jean Harootenian to file a complaint in intervention for contest of the will and the complaint was filed pursuant to the order on the following day. It was alleged therein, among other things, that the purported will was prepared and obtained by George Harootenian and Agnes Philliposian with the intent to defraud appellant and for the purpose of preventing her from satisfying the judgment then held by her against George Harootenian; that George Harootenian apparently was without assets and judgment proof; that George Harootenian is a party beneficially interested under said will in that George Harootenian and Agnes Philliposian did, prior to the purported execution of said will, secretly agree that Agnes Philliposian would secretly hold the share of said George Harootenian in and to said estate, in trust, for the use and benefit of the said George Harootenian; that appellant was a person interested in the estate and a judgment creditor of George Harootenian; that the purported will was not duly executed; that the decedent was not of sound and disposing mind and that his signature to the will was procured by undue influence of George Harootenian and Agnes Philliposian.

On April 5, 1949, the contest of Haig Harootenian went to trial upon the issue of the right of the contestant to maintain the contest as ‘an interested person’ within the meaning of section 380 of the Probate Code. The issue was determined against the contestant, Haig Harootenian and on April 16, 1949, the court entered its judgment dismissing the petition of Haig Harootenian. There was no appeal from this judgment and it became final. However, the judgment did not dispose of the complaint in intervention, filed by appellant in said action.

On June 8, 1949, the demurrer to appellant's complaint in intervention was sustained and on August 8th of that year, she filed an amended complaint, setting forth substantially the same grounds as alleged in her first complaint. Respondents interposed a general and special demurrer to the amended complaint and a motion for dismissal. The grounds stated in the demurrer are, in part, that the amended complaint in intervention did not state facts sufficient to constitute a cause of intervention in the will contest and that the intervention was barred by the provisions of section 380 of the Probate Code and by laches. The grounds relied upon for dismissal were that there was no contest pending and that the original complaint in intervention was not filed within the time provided by section 380 of the Probate Code. After a hearing, the demurrer was sustained and the motion granted. Whereupon, the order and judgment appealed from was entered.

The first question presented is whether appellant, as a judgment creditor of George Harootenian, is an ‘interested person’ within the meaning of section 380 of the Probate Code.

Our attention has not been directed to any California authority on the subject. However, the cases from other jurisdictions on the subject are discussed at length in the annotation found in 46 A.L.R. 1490, and in a later annotation in 128 A.L.R. 963. The weight of authority is apparently to the effect that a judgment creditor of an heir is an ‘interested person’ and may contest the will.

In Estate of Baker, 170 Cal. 578, at pages 585 and 586, 150 P. 989, it was stated that the right of an heir or other person in interest to contest a will is fundamentally based upon the illegal deprivation occasioned to him, the illegal loss to him of property or property rights, by giving recognition to an instrument depriving him of those rights, which instrument for one or another cause, is illegal, invalid, and void; that the contest of a will goes to establish upon the part of the contestant that his right to property has been violated.

In Estate of Bily, 96 Cal.App.2d 333, 334–335, 215 P.2d 78, 79, the following language appears: ‘If it is made ‘to appear that a person has such an interest as may be impaired or defeated by the probate of the will, or benefited by setting it aside, he is a person interested.’ Estate of Land, 166 Cal. 538, 543, 137 P. 246, 248. ‘Any person interested’ means any person ‘having a direct pecuniary interest affected by the probate of the will.’ Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N.E. 860, 862, 130 Am.St.Rep. 180, quoted with approval in Estate of Land, supra. The phrase means a person having such a ‘pecuniary interest in the devolution of the testator's estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will.’ Bloor v. Platt, 78 Ohio St. 46, 84 N.E. 604, 605, 14 Ann.Cas. 332, quoted with approval in Estate of Land, supra. The interest must be one in the estate that may be impaired or defeated by the will assailed. Estate of Plaut, 27 Cal.2d 424, 425, 164 P.2d 765, 162 A.L.R. 837; Estate of Anthony, 127 Cal.App. 186, 189, 15 P.2d 531; Estate of Carr, 82 Cal.App.2d 780, 783, 187 P.2d 912; cf., Marculescu v. City Planning Comm., 7 Cal.App.2d 371, 374, 46 P.2d 308.'

And in Estate of Plaut, 27 Cal.2d 424, 425, 164 P.2d 765, 766, 162 A.L.R. 837, it was held that ‘Only an interested person may contest a will, either before or after probate. Probate Code, §§ 370, 380.’

We conclude that appellant had ‘such an interest’ as might be impaired or defeated by the probate of the will involved, or benefited by setting it aside, at least as a matter of pleading.

Respondents argue that since the complaint in intervention was not filed within the time limited by section 380 of the Probate Code, the intervention was dependent upon the principal contest and could not be maintained after that contest was dismissed for want of legal authority of the contestant to contest the will. However, as noted, the contest of Haig Harootenian was dismissed as to him only and the issues presented by the complaint in intervention, which was then on file, were not adjudicated.

In Voyce v. Superior Court, 20 Cal.2d 479, 486, 127 P.2d 536, it was held that the right to file a petition in intervention under the circumstances there present was not barred by reason of the fact that it was not filed within six months after probate. In that case an original contest was initiated within the statutory period. More than nine months after the statutory period had expired, a petition in intervention was filed on the same grounds as the original contest. As in the case at bar, the latter proceeding was then still pending. Two days later the original contestant voluntarily dismissed her contest. The court held that such dismissal could not deprive the intervenors of the right to have the contest heard and determined since the court did not lose jurisdiction by the dismissal and it stated, 20 Cal.2d at page 485, 127 P.2d at page 540: ‘We believe that it is equally clear that an interested person as mentioned in section 380 of the Probate Code may intervene in a will contest initiated by another interested person within six months after probate, even though the intervention is filed after the expiration of the six months' period.’

In Estate of Butzow, 21 Cal.App.2d 96, 98, 68 P.2d 374, it is stated that a contest filed within the statutory time enures to the benefit of an interested party who intervenes after the statutory period, and that the statute of limitations is not a defense to such a petition.

Under the rules announced in the foregoing decisions and the circumstances presented by the record, we conclude that the appellant is an ‘interested person’ within the meaning of Probate Code section 380 and that since the original complaint in intervention was filed within the statutory period, a subsequent dismissal of the original petition as to the contestant Haig Harootenian did not divest the court of jurisdiction to determine the issues raised by appellant's amended complaint in intervention.

Finally, it is contended by the respondents that the court was justified in sustaining the demurrer and dismissing the complaint in intervention for unreasonable delay. However, we do not think that it can be said, as a matter of law, that the intervenor was guilty of laches under the circumstances here shown. The equitable doctrine of laches is not involved merely because of a lapse of time. There must be a showing first of a neglect or omission to assert a right and subsequently of a consequential passage of time which has caused such prejudice to an adverse party that equity will bar the assertion of the right. 10 Cal.Jur. 520; Cahill v. Superior Court, 145 Cal. 42, 48, 78 P. 467. While, ordinarily, laches is a fact to be determined by the court from the evidence, the plea must fail where no damages are proved to have been suffered by the pleader. Los Angeles Brick & Clay Products Co. v. City of Los Angeles, 60 Cal.App.2d 478, 488, 141 P.2d 46.

As was said in Thornton v. Middletown Education Corp., 21 Cal.App.2d 707, 711, 70 P.2d 234, 236:

‘There being no change affecting the legal rights of the parties, the plea of laches has no foundation. In order that such plea may be obtained it is necessary that the record show a financial loss which has been occasioned by the lapse of time. The lapse of time in this case, alone, is not sufficient to bar the action.

‘The defendants not having been prejudiced in any particular by failure of either the grantors or of the plaintiff to institute this action earlier, the plea of laches, we may state again, has no foundation.’

We conclude that as against a general demurrer the amended complaint in intervention stated a cause of action and that the trial court erred in sustaining the demurrer and dismissing appellant's complaint in intervention. The order appealed from is reversed.

MUSSELL, Justice.

GRIFFIN, Acting P. J., concur.

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