IN RE: the ESTATE of Harry A. SHERMAN

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

IN RE: the ESTATE of Harry A. SHERMAN, Deceased (two cases). Jacob H. KARP, Petitioner and Respondent, v. HOPALONG CASSIDY, Inc., Contestant and Appellant,

Theodora Lois Sherman, Arlynne Sherman Wood, Ruth Britton Moon and Gordon B. Lockerbie, Contestants and Respondents. Jacob H. KARP, Petitioner and Respondent, Hopalong Cassidy, Inc., Respondent, v. Theodora SHERMAN, Arlynne Sherman, Ruth Britton Moon and Gordon B. Lockerbie, Contestants and Appellants.

Civ. 20128, 20215.

Decided: May 27, 1955

Gang, Kopp & Tyre, Los Angeles, Hermione K. Brown and Milton A. Rudin, Los Angeles, of counsel, for Hopalong Cassidy, Inc. Morris Lavine, Los Angeles, for Theodora Sherman and others. H. P. Babson and John C. Goff, Los Angeles, for Jacob H. Karp.

Two appeals have been consolidated from orders of the probate court concerning the sale of approximately 200,000 feet of stock film footage for a purchase price of $5,000. The first appeal, No. 20128, in which Hopalong Cassidy, Inc. is appellant (hereinafter designated as Hopalong), is taken from an order dated August 10, 1953, vacating an order of June 22, 1953, approving the sale of certain stock film footage by the estate of Harry A. Sherman, deceased, to Hopalong at a price of $5,000. In this appeal respondents are two legatees under decedent's will and two creditors of his estate. This group will be referred to as the ‘Sherman group.’

The second appeal, No. 20215, is prosecuted by the Sherman group from orders dated August 24, 1953 and September 1, 1953, overruling their objections and approving the executor's sale of the stock film footage to Hopalong.

Facts: Harry A. Sherman died on September 25, 1952, leaving a will which read in part:

‘Fifth: I hereby nominate my friends, Jacob H. Karp and Julian C. Sorin, or their survivor, or such as may qualify, to act as executor hereof, either and both to serve without bond.

‘I authorize my executor to do any and all things necessary in the management and distribution of my estate as he, in his discretion, shall deem advisable.’

Part of this estate consisted of 200,000 feet of stock film footage in which Paramount Pictures Corporation owned an interest. Decedent's estate was insolvent and the executor sought diligently to develop a market for the film footage mentioned above. After extended negotiations he received an offer from Hopalong of $5,000 for the film footage on condition that the offer be accepted and the property be delivered prior to July 15, 1953. Thereupon the executor filed a petition for the approval of sale for the film footage which petition was dated and verified on May 21, 1953, setting forth the terms and conditions of the sale to Hopalong.

On June 11, 1953, the probate court heard the petition for approval of the sale, granted it and signed an order on June 22, 1953, approving the sale to Hopalong for $5,000.

Thereafter the Sherman group filed a motion to set aside the order approving the sale upon the ground that although they had requested special notice of any proceedings in the estate none had been served upon them relative to the hearing on June 11, 1953.

On August 4, 1953,1 the Sherman group's motion came on for hearing and the executor, while conceding that notice of the hearing on June 11, 1953, had not been properly served upon the Sherman group, presented a petition for the approval of the sale under the provisions of section 7702 of the Probate Code, taking the position that the sale had actually been made, and that the executor was in fact dealing with a dissipating asset and requested the court to approve the sale. This the court refused to do and set aside the order of sale dated June 22, 1953, and reset the matter for hearing and bids on August 24, 1953.

The executor then filed a verified petition for instructions dated August 14, 1953, outlining in detail the problems which confronted the estate relative to the stock film footage and asking whether he should be instructed to sell the film footage or withdraw the product from the market. Objections were filed by the Sherman group to the petition filed under section 770, Probate Code, and to the petition for instructions.

After hearing on August 24, 1953, the probate court overruled the Sherman group's objections, affered the property for sale, and no other bids being forthcoming, approved the sale of the film footage to Hopalong upon the terms and conditions set forth above.

August 19, 1953, Hopalong filed a notice of appeal from the order of August 10, 1953, vacating the order approving the sale of personal property to Hopalong.

On September 28, 1953, the Sherman group filed a notice of appeal from the order of August 24, 1953, overruling objections to the confirmation of the sale of the film footage and to the order of September 1, 1953, confirming the sale of the stock film footage to Hopalong.

These appeals have been consolidated for hearing in this court. We will first consider the Sherman group's appeal No. 20215, and then the Hopalong appeal No. 20128.

Sherman Group Appeal No. 20215

Questions: First: Did the notice of appeal by Hopalong, No. 20128, filed August 19, 1953, deprive the probate court of jurisdiction to entertain the petition for approval of the sale on August 24, 1953, and make an order accordingly?

No. Section 946 of the Code of Civil Procedure provides in part as follows: ‘Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein, * * * but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from.’ (Italics added.)

An appeal from an order does not deprive the trial court of all jurisdiction over the cause pending such appeal but only over so much as is affected by the appeal. It does not deprive the trial court of jurisdiction as to purely collateral, supplemental or independent matters pending the appeal. (People v. Hall, 115 Cal.App.2d 144, 154[6], 251 P.2d 979; Hennessy v. Superior Court, 194 Cal. 368, 372[3], 228 P. 862; In re Estate of Waters, 181 Cal. 584, 585[1], 185 P. 951.)

It is clear that in the instant case the action taken by the trial court on August 24, 1953, was collateral and independent of the order of June 22, 1953. The appeal from the order of June 22nd pertained solely to whether the probate court's action in vacating its previous order was correct, while the appeal from the order of August 24th pertained solely to the authority of the probate court to approve the sale which had been made.

Counsel for the executor by an example aptly illustrates the untenability of the Sherman group's contention. They say:

‘Let us assume a factual situation, similar to the situation which exists in the instant case, with reference to the early sale set aside by the Court and the subsequent appeal. Let us vary the subject matter and assume that the sale concerned a load of ice, or any other rapidly depreciating asset. For the Court to hold under the assumed circumstances that the executor lacked the power to sell the load of ice and the Court lacked the power to approve that sale, borders on the ridiculous. Certainly, the interests of the estate would demand that the executor act and salvage what he could for the estate, and the fact that a notice of appeal had been filed vacating a prior order of sale should affect neither the executor's power to sell nor the Court's power to approve that sale.’

Second: Was the probate court without jurisdiction to enter the order of August 24, 1953, approving the sale of the property for the reason that the executor's petition did not specifically request approval of the sale under any particular section of the Probate Code?

No. An examination of the executor's petition discloses that the petition itself contains sufficient factual allegations for the approval of the sale pursuant to the provisions of either section 755, 757 or 770 of the Probate Code.

In a contested matter the court may grant any relief embraced within the allegations of the petition and within the jurisdiction of the court consistent with the evidence presented at the hearing. (Section 580, Code of Civil Procedure; Jones v. Alexander, 101 Cal.App.2d 44, 45[1], 224 P.2d 870.)

In the instant case the requirements of the foregoing rule have been met.

Third: Did the will of decedent confer a power of sale upon the executor?

Yes. The fifth section of the will provided in part, ‘I authorize my executor to do any and all things necessary in the management and distribution of my estate as he, in his discretion, shall deem advisable.’ (Italics added.)

‘Any’ is defined in Vol. I, Webster's New International Dictionary (1939) p. 121, in part as follows:

‘i. One indifferently out of a number; one * * * indiscriminately of whatever kind; specif.: a. Indicating a person, thing, event, etc., as not a particular or determinate individual of the given category but whichever one chance may select; this, that, or the other; one or another; * * * 2. One or all * * * indiscriminately of whatever quantity; specif.: a. Indicating a positive but undetermined number or amount; one or more; not none; as, I do not find any nails; have you any money? b. Indicating the maximum or whole of a number, quantity, etc.; all; as, give him any papers you find; I need any help I can get. * * * 3. Of an amount, quantity, number, time, extent: a. Great, unmeasured, or unlimited; up to whatever measure may be desired or needed; the whole; as, Niagara can produce any quantity of water power; any time these twenty years.’

‘All’ in the same authority at page 67, is defined in part: 1. The whole of;—used with a singular noun or pronoun, and referring to amount, quantity, extent, duration, quality, or degree; as, all the wheat; all the year; all this; specif., as much as, or the greatest, possible; complete; perfect; as, all happiness; with all speed; in all kindness. 2. The whole number or sum of;—used collectively, with a plural noun or pronoun expressing an aggregate, to mean, esp. in logic, that a statement is true of the sum of the individuals or cases considered; as, all the angles of a triangle are equal to two right angles. 3. Every number or individual component of; each one of; generically and distributively, meaning that a statement is true of every individual or case; as, all men are mortal. * * *'

Clearly the language used by the testator in the instant case meant exactly what it said: that the executor was authorized to do each and every thing necessary to the distribution of his estate as he [the executor], in his discretion should deem advisable.

One of the things that the executor deemed advisable was to sell the film footage to Hopalong for the price and upon the conditions agreed upon. This view is in accordance with the statements in Restatement of the Law of Trusts, Volume I (1935) page 501, section 190, which read in part: ‘The trustee can properly sell trust property if—b. The language of the trust instrument. The trustee can properly sell trust property if it appears from the language used in the trust instrument that a power of sale was intended to be conferred upon him, although it is not conferred in specific words. Thus, an authorization or direction to the trustee to ‘invest and manage,’ or to ‘invest and reinvest,’ or to ‘dispose of’ the trust property, may confer a power of sale both of real and personal property. In determining the meaning of a provision in the trust instrument resort can be had to the whole of the instrument and to the surrounding circumstances.

‘If a trustee is authorized to sell trust property only for a particular purpose, he cannot properly sell except for that purpose. So also, if he is authorized to sell only under certain circumstances, he cannot properly sell except under those circumstances. Thus, if by the terms of the trust the trustee is authorized to sell trust property if such sale is necessary to raise money for the support of the beneficiary, he cannot properly sell unless it reasonably appears necessary to sell property for this purpose.’ (See also Carleton v. Goebler, 94 Tex. 93, 58 S.W. 829, 831; Scarborough v. Scarborough, 134 N.J.Eq. 201, 34 A.2d 791, 796.)

In view of the fact that the sale was properly made pursuant to the power of sale conferred upon the executor by the will, it was unnecessary for the probate court to make any specific findings, but only to comply with the requirements of section 757 of the Probate Code, which it did. Said section reads as follows:

‘When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell the same either at public auction or private sale, and with or without notice, as he may determine; but he must make a return of sales and obtain confirmation thereof as in other cases. In either case no title passes unless the sale is confirmed by the court; but the necessity of the sale, or its advantage or benefit to the estate or to those interested therein, need not be shown. If directions are given in the will as to the mode of selling, or the particular property to be sold, such directions must be observed.’

Cases relied on by the Sherman group, such as Billings v. Morrow, 7 Cal. 171; Quay v. Presidio R. Co., 82 Cal. 1, 22 P. 925; Wilcoxson v. Miller, 49 Cal. 193; Treat v. De Celis, 41 Cal. 202 and Grant v. Ede, 85 Cal. 418, 24 P. 890, are not here in point since such cases involved powers of attorney and agency contracts, and not powers conferred in a testamentary document. The rules of instruction and interpretation of wills are more liberal than those which are applicable in inter vivos powers of attorney. Hence the cited cases are not here controlling.

The rule which is here applicable is well stated in Cahill v. Russell, 140 N.Y. 402, 35 N.E. 664, where the court said: ‘It is evident that the testamentary plan which the testatrix had formulated in her own mind contemplated the grant of a power of sale to her executor. If the form adopted to express her intention is ambiguous or incomplete, the intent, nevertheless, should prevail. Formal words are not necessary to create a power, and * * * ‘However obscurely in a will the intention may be expressed, yet if it appears that a power of sale was intended, a sale will be supported.’' (See also Knight v. Gregory, 333 Ill. 643, 165 N.E. 208, 210[3]; Illinois Christian Missionary Soc. v. American Christian M. Soc., 277 Ill. 193, 115 N.E. 118, 120 [1–3]; In re Miller's Will, Sur., 79 N.Y.S.2d 128, 129[1–3]; In re Dzwoniarek's Estate, 143 Misc. 597, 258 N.Y.S. 53, 55[4]; and In re Walker's Will, 258 Wis. 65, 45 N.W.2d 94, 95[1], 823 A.L.R.2d 991; Whisman v. Roberts' Ex'r, 306 Ky. 433, 208 S.W.2d 305; Goeke v. Pierson, 141 N.J.Eq. 294, 57 A.2d 370, 371[1].)

Fourth: Were the Sherman group deprived of due process of law in that they did not have notice and an opportunity to be heard?

No. The record discloses without question the Sherman group had notice, were present and were heard at the hearing upon which the order of August 24, 1953, was predicated. No useful purpose would be served by giving details of the arguments presented by counsel for the Sherman group at the hearing. Suffice it to say that they were fully heard and given an adequate opportunity to present any bid which they might have desired to make to purchase the film. This they did not do. They thereby waived any objection to the manner in which the proceedings were handled, since they did not avail themselves of their opportunity to make such objections at the time of hearing. (See also In re Estate of Wilson, 116 Cal.App.2d 523, 526, 253 P.2d 1011.)

In view of the foregoing, it is evident that the probate court's orders of August 24, 1953 and September 1, 1953, were proper and free from error.

Hopalong Appeal No. 20128

In view of our decision in the Sherman Group No. 20215, the questions raised on the appeal of Hopalong, No. 20128, have become moot and therefore the appeal should be dismissed.

The orders of August 24, 1953 and September 1, 1953, are and each is affirmed.

The appeal of Hopalong from the order of August 10, 1953, is dismissed.

FOOTNOTES

1.  The order was dated August 10, 1953.

FN2. Section 770 of the Probate Code reads: ‘Perishable property and other personal property which will depreciate in value if not disposed of promptly, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to provide the family allowance pending the receipt of other sufficient funds, may be sold without notice, and title shall pass without confirmation; but the executor, administrator or special administrator is responsible for the actual value of the property unless, after making a sworn return, and on a proper showing, the court shall approve the sale.’.  FN2. Section 770 of the Probate Code reads: ‘Perishable property and other personal property which will depreciate in value if not disposed of promptly, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to provide the family allowance pending the receipt of other sufficient funds, may be sold without notice, and title shall pass without confirmation; but the executor, administrator or special administrator is responsible for the actual value of the property unless, after making a sworn return, and on a proper showing, the court shall approve the sale.’

McCOMB, Justice.

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