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

CENTRAL BANK, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, in and for the COUNTY OF ALAMEDA, Respondent.

Civ. 16260.

Decided: September 17, 1954

Fitzgerald, Abbott & Beardsley, Oakland, for petitioner. Lew M. Warden, Jr., Oakland, for respondent.

In 1949 by proceedings regularly taken in the respondent superior court Bennie L. Perry, the mother of Sam Perry, a minor, was duly appointed and qualified as the guardian of the estate of said minor. Thereafter the respondent court approved the compromise of a claim of the minor against Owens-Illinois Glass Company. After deducting costs and attorneys fees the net amount payable to the minor as a result of this compromise was $4,011.71. With respect to this sum the respondent court made and entered the following order:

‘It is further ordered that the net sum remaining, to wit, $4,011.71, be deposited in the Central Bank, 14th & Broadway, Oakland, California, in a savings account in the name of said minor with the petitioner (Bennie L. Perry) as trustee thereof, without bond, and there to remain until said minor attains the age of twenty-one years, or upon further order of this court.’

This order was made pursuant to, and was expressly authorized by, the language of Probate Code, § 1431, which provides that upon approving the compromise of the claim of a minor for a sum in excess of $2,000 the court must require the money to be paid to a general guardian ‘or in lieu thereof it must require that any moneys so paid be deposited in a bank or trust company subject to withdrawal only upon the order of the court’.

No copy of this order was delivered to the petitioner herein. However a check in the sum of $4,011.71, payable to the order of ‘Central Bank, 14th and Broadway’ was presented to the petitioner bank by Benie L. Perry and by the bank deposited in Bennie L. Perry's personal account. On the back of said check the following words had been typed: ‘To be deposited to the account of Sam Perry, a minor, with Benny L. Perry, as Trustee, said funds to remain on deposit until Sam Perry attains the age of twenty-one years, or upon the further order of Court.’

Thereafter Bennie L. Perry without any order of respondent court withdrew all of said funds with the exception of $5 and dissipated them.

Pursuant to proceedings taken in the respondent court in the matter of the guardianship of Sam Perry, which were initiated by the filing of a complaint substantially alleging the facts above recited and the issuance thereon of a citation to the petitioner bank, the judge of respondent court heard testimony and filed a memorandum in which he announced his intention of making an order finding that the bank holds the sum of $4,011.71 for the account of said minor.

Thereupon the petitioner filed herein a petition for a writ of prohibition to prohibit the making of such order. It is petitioner's contention that it is a stranger to the guardianship proceedings and that the respondent court in such proceedings cannot adjudicate a conflicting claim between the bank and the minor. The general principle upon which petitioner relies is well settled. McCarthy v. Superior Court, 64 Cal.App.2d 468, 149 P.2d 55; Wilson v. Superior Court, 101 Cal.App.2d 592, 225 P.2d 1002; Estate of Dabney, 37 Cal.2d 672, 234 P.2d 962.

There is an equally well recognized exception to this rule however. Title may be tried between the estate and those in privity with the estate by the court sitting in probate. The rule has been most frequently applied to claims between the estate and the executor or administrator. See the cases collected in Schlyen v. Schlyen, 43 Cal.2d 361, 273 P.2d 897. It has also been applied to attorneys for the personal representative into whose hands money or property of the estate has come, Estate of De Barry, 43 Cal.App.2d 715, 111 P.2d 728; Estate of Troy, 92 Cal.App. 352, 268 P. 426, and to a distributee who received property under a decree afterwards set aside. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 P. 210.

As a part of the return the judge of the respondent court has certified the findings which he proposes to make in this proceeding. Among such proposed findings are the following:

‘7. That said Central Bank had notice of the conditions of deposit set forth on the reverse side of said check as aforesaid.

‘8. That said Central Bank had the aforesaid notice of the aforesaid order * * * regarding deposit of said funds.’

We are satisfied that a bank which is designated as the depositary of the funds of a minor by an order made by the superior court in a guardianship proceeding, pursuant to the express authorization of Probate Code, § 1431 above aquoted, and which receives such funds with notice of the order of the court is not a stranger to the guardianship proceeding in which the order is made but is in privity therewith. This being so the court in the guardianship proceeding has jurisdiction to make the proposed order.

The alternative writ is discharged and the petition is denied.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.