SAYEGH v. SUPERIOR COURT IN AND FOR THE COUNTY OF LOS ANGELES

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

Alice Araxie SAYEGH, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF LOS ANGELES, Respondent.

Civ. 20696.

Decided: February 25, 1955

A. G. Ritter, Los Angeles, for petitioner. Louis P. Pink and J. Perry Langford, Los Angeles, for respondent.

This is an application for a writ of prohibition to restrain respondent court from retrying an issue of fact relative to the validity or invalidity of an ante-nuptial agreement between petitioner and her husband now deceased.

Chronology

1. February 16, 1948, Gabriel N. Sayegh, now deceased, executed his last will and testament; on February 18, 1952, he entered into a written ante-nuptial agreement with petitioner, then known as Alice Araxie Bakurjian. Within an hour or so after the agreement was entered into, petitioner and Gabriel N. Sayegh were married.

2. February 24, 1952, Mr. Sayegh died, and on March 13, 1952, a petition for admission to probate of the last will and testament of Gabriel N. Sayegh, and for appointment of executors was filed in the probate court.

3. On the 17th of March, 1952, notice of the filing of said petition to probate will, etc., and of the time and place of hearing of the same were mailed to have widow, designated heirs and beneficiaries of the will.

4. April 2, 1952, an order was made admitting the will to probate.

5. April 3, 1952, John Sayegh and George Sayegh, brothers of decedent were appointed executors of the estate. The will contained in part the following provisions:

‘Seventh: I give, devise and bequeath the rest, residue and remainder of my estate, real, personal or mixed, and wheresoever situate, of which I die possessed, to my brother, John Sayegh and George Sayegh, In Trust, for the following uses and purposes:

‘(A) Distribution of Income and Principal:

‘(1) The trustees shall divide the trust estate into two equal trusts as follows: one trust for the lawful issue of my brother, John Sayegh, living at the time of my death, in equal shares; and the other trust for the lawful issue of my brother, George Sayegh, living at the time of my death, in equal shares.

‘(2) The net income from each undistributed share shall be accumulated or distributed in monthly or other convenient installments to, or used for the benefit of, the child for whom the share was set aside, in the sole and absolute discretion of my Trustees.

‘(3) Each share set aside for a living child, including accumulated income, if any, shall be distributed to such child to the extent of one-third of the share if the child has attained the age of twenty-one years; the remaining two-thirds of the corpus of each share, together with accumulated income, if any, shall be distributed to each child at such time as my Trustees, in their sole discretion, may deem advisable, but in any event on or before each child respectively attains the age of thirty years.

‘(4) Should any of my nephews and nieces who are beneficiaries under either of these trusts die before becoming entitled to receive distribution of the entire share set aside for him or her, such share, or its undistributed remainder, shall go to augment equally the shares then held for the benefit of, and those previously distributed to, his or her surviving brothers and/or sisters. Any addition to a partially distributed share shall augment proportionately the distributed and the undistributed parts of that share.

‘(5) Unless terminated at an earlier date under the foregoing provisions, this trust shall cease upon the death of the last survivor of the following named of my nephews and nieces: Many Agnes Sayegh, Claire Sayegh, Jeanette Sayegh, James Sayegh, Richard Sayegh and Lorraine Sayegh.’

6. May 5, 1952, petitioner filed a petition for a widow's allowance to which the executors filed their answer and objections, claiming that the pre-nuptial agreement entered into between decedent and petitioner barred her from any share in decedent's estate, including a widow's allowance. After a hearing the trial court held that the ante-nuptial agreement was invalid, void and of no effect, and awarded petitioner a widow's allowance. The executors appealed and thereafter the appellate court affirmed the ruling of the trial court. (In re Estate of Sayegh, 118 Cal.App.2d 327, 257 P.2d 995.)

7. October 14, 1953, Marie Sayegh, as Guardian ad Litem of Richard Thomas Sayegh, a minor, Lorraine Marie Sayegh, a minor, and Rebecca Sayegh, as Guardian ad Litem of Claire Cecilia Sayegh, a minor, Jeannette Catherine Sayegh, a minor, and James Francis Sayegh, a minor, and Mary Agnes Raheb, filed a petition for determination of heirship, claiming to be the sole and exclusive heirs of decedent, and that petitioner had no interest in decedent's estate because of the ante-nuptial agreement above mentioned.

8. November 20, 1953, petitioner filed her answer to the petition for determination of heirship.

9. June 11, 1954, the matter came on regularly for hearing and petitioner through her attorney contended that the judgment which had become final in connection with the family allowance proceedings, holding that the ante-nuptial agreement was void, was binding upon the minor children and testamentary trustees so far as the validity or invalidity of that agreement was concerned; that the matter was res judicata, and asked the trial judge to so determine as a matter of law which would thus end the matters involved in the heirship proceedings. The petitioners on the application for determination of heirship asserted that the former judgment was not binding upon them and they were entitled to set up the ante-nuptial agreement as a defense to the widow's claim of heirship. After argument the trial judge refused to pass upon the question and transferred the case to the master calendar department of the superior court for setting and trial.

These are the questions presented for determination:

First: Was the holding on the petition for a widow's allowance that the ante-nuptial agreement between decedent and petitioner herein was void binding upon the legatees under the trust created by decedent's will and thus res judicata?

Yes. The doctrine of res judicata is applicable when the following elements exist:

(1) An issue was decided in a prior adjudication identical with the one present in the action in question;

(2) A final judgment on the matter; and

(3) When the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. (Bernhard v. Bank of America, 19 Cal.2d 807, 813[5], 122 P.2d 892.)

In the instant case it is conceded that the issue decided in the prior adjudication (the petition for a widow's allowance) is identical with the one presented in the present matter (petition for determination of heirship), and that the determination of the issue has become final. (In re Estate of Sayegh, 118 Cal.App.2d 327, 257 P.2d 995.)

This leaves as the sole matter for determination the question of whether the parties against whom the plea is asserted were parties or in privity with the party to the prior adjudication. We believe they are, and that the issue is controlled by the following statement in Bernhard v. Bank of America, supra, 19 Cal.2d at page 813, 122 P.2d at page 895: ‘The plaintiff has brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the earlier hearing on the executor's account. In that proceeding plaintiff and the other legates who objected to the executor's account represented the estate of the decedent. They were seeking not a personal recovery but, like the plaintiff in the present action, as administratrix, a recovery for the benefit of the legatees and creditors of the estate, all of whom were bound by the order settling the account. Cal.Prob.Code, sec. 931. See cases cited in 12 Cal.Jur. 62, 63. The plea of res judicata is therefore available against plaintiff as a party to the former proceeding, despite her formal change of capacity. ‘Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other.’ (Citing cases.)'

The foregoing decision of our Supreme Court may be paraphrased as applicable to the question before this court as follows: ‘The petitioners in the proceedings for determination of heirship brought such action in the capacity of guardians ad litem for beneficiaries of a trust created by the will of decedent. In this capacity they represented the very same persons and interests that were represented in the earlier hearing on the petition for a widow's allowance. In that proceeding the executors who objected to the widow's petition for a family allowance represented the estate of decedent. They were seeking not a personal recovery but, like the petitioners in in the proceeding for determination of heirship as guardians ad litem, a recovery for the benefit of legatees and creditors of the estate either of whom were bound by the order determining that the widow was entitled to a family allowance. The plea of res judicata is therefore available against petitioners for determination of heirship as parties to the former proceeding despite their formal change of capacity. Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other.’

In the present case the executors were also the trustees under the will of decedent for the beneficiaries here involved, and the rule is established that where an action is prosecuted by and in the name of the trust for the benefit of the beneficiaries, whoever they may be, the beneficiaries thereof not named as parties to the record or privities thereto, are estopped by the doctrine of res judicata in the absence of fraud. (Section 369, Code Civ.Proc.; Glide v. Dwyer, 83 Cal. 477, 486, 23 P. 706.)

The cases relied on by respondent are all factually distinguishable from the present case. For example, In re Estate of Blake, 157 Cal. 448, 457, 108 P. 287, 291, wherein the doctrine of res judicata was found to be inapplicable, it was held that, ‘* * * the decree did not operate as a bar to the remaindermen or beneficiaries to maintain this proceeding affecting other and different property.’ (Italics added.)

It is to be noted that in the instant case the prior judgment affected the same identical property as is involved in the latter proceedings.

In re Estate of Rath, 10 Cal.2d 399, 406, 75 P.2d 509, 115 A.L.R. 836, it was expressly held that questions which had been incidentally determined in a previous hearing were not res judicata. In the case at bar the matters previously determined on the petition for a widow's allowance were not incidental, but were the main issues involved, and were the same as those on the petition for determination of heirship.

It would serve no useful purpose to analyze in detail each of the cases cited by respondent, such as, County of Los Angeles v. Morrison, 15 Cal.2d 368, 101 P.2d 470, 129 A.L.R. 443; Johnston v. Long, 30 Cal.2d 54, 181 P.2d 645; Stoops v. Woods, 45 Cal. 439; Elliott v. Hudson, 18 Cal.App. 642, 124 P. 103, 124 P. 108; Stockton Building & Loan Ass'n v. Chalmers, 75 Cal. 332, 17 P. 229; Travis Glass Co. v. Ibbetson, 186 Cal. 724, 200 P. 595, and Goad v. Montgomery, 119 Cal. 552, 51 P. 681, where from a reading of each it is patent there is a different factual situation from that now presented for determination.

Second: Does petitioner here have an adequate remedy by appeal, thus precluding the issuance of a writ of prohibition by this court?

No. The remedy in the ordinary course of law by appeal from the judgment at the end of a trial is not adequate so as to preclude the issuance of a writ of prohibition when petitioner would be subjected to the vicissitudes of an unnecessary trial. (Hampton v. Superior Court, 38 Cal.2d 652, 657[11–12], 242 P.2d 1; cf. Providence Baptist Church of San Francisco v. Superior Court, 40 Cal.2d 55, 60[7], 251 P.2d 10.)

In the present case it is clear that the determination of the proceedings on the questions raised in the heirship proceedings could be legally only in favor of petitioner, here, and that if required to stand trial upon the issue it would involve unnecessary expense, delay and prejudice to petitioner. Therefore prohibition is the proper remedy.

In view of our conclusions discussion of other questions raised by counsel is unnecessary.

Let a writ of prohibition issue as prayed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.