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

Clara CRANEY, Plaintiff and Appellant, v. Elizabeth B. LOW et al., Defendants and Respondents.

Civ. 21014.

Decided: October 21, 1955

E. C. Mahoney, Burlingame, for appellant. Pacht, Ross, Warne & Bernhard, Isaac Pacht, Leo Altshuler, Jerry Pacht, Los Angeles, for respondents.

Plaintiff herein, having failed to further amend a third amended complaint after the sustaining of demurrers thereto, appeals from the judgment of dismissal.

According to the appellant's brief, ‘This is an action by the mother of Bernard J. Craney, deceased, against his purported widow, the attorney who represented the latter in certain probate proceedings, and the attorney's secretary. The first cause of action alleges that the defendants, knowing that the decedent's estate was entirely separate property, acted together to deprive the plaintiff of her just share and caused all of the inventoried estate to be distributed to the purported widow. Also, that not all of the decedent's estate was inventoried in that before his death he was the owner of a valuable hotel lease which contained an option for its renewal. Instead of including this asset in the inventory, the purported widow, with the aid of the other defendants, negotiated a new lease in her own name, and thus appropriated the same.

‘The complaint further alleges that the plaintiff was lulled into a position of security by defendant Low and she was thus induced to trust to her the handling of her son's estate. The estate was distributed before plaintiff realized that she had been duped.

‘The second cause of action attacks the marriage between defendant Low and the decedent, claims that it was void and thus defendant had no legal right to any part of decedent's estate. The attack on the marriage is based on the fact that defendant Low left the State of California to evade the divorce laws, obtained a divorce in Nevada, returned immediately to California and married the decedent.

‘Plaintiff seeks a judgment declaring the property of her deceased son was his separate property. If she cannot successfully attack the marriage of the defendant Low, plaintiff asks for a judgment for one-half of all of his estate, but if the attack on the marriage can be successfully maintained, she seeks it all.’

Plaintiff's original complaint sought damages for fraud alleged to have been perpetrated by defendants during the probate of the son's estate. Plaintiff therein admitted receiving a post card notice of hearing on the petition for appointment of administrator (defendant attorney's secretary, nominated by defendant Elizabeth B. Low); the complaint alleged no misrepresentations, and further stated ‘That thereafter, plaintiff heard nothing from the defendants, or either of them.’ A second count alleged that the marriage was illegal.

The first amended complaint changed the prayer to request that the decree of final distribution be set aside and a trust imposed upon the distributed property. Defendants' demurrers being again sustained, plaintiff's second amended complaint further alleged that the deceased son, Bernard J. Craney, ‘contributed to her support at regular intervals. That, after his death, defendant, Elizabeth B. Low, alias, often referred to plaintiff as ‘dear mother Craney’, and made statements directly and indirectly to her that ‘she should not worry about her son's affairs', that she ‘would always carry out his wishes', that she would carry on financially the same ‘as her husband had been doing, and that she would even do better by her’, and ‘would keep her posted’ as to everything that went on concerning his estate.' It was also alleged that ‘plaintiff relied on the statements made to her’.

Sustaining demurrers to the Second Amended Complaint, the trial court stated that plaintiff's procedure was proper ‘if a case of extrinsic fraud is sufficiently pleaded’, but held that the complaint failed to sufficiently plead such fraud. In a ‘Memorandum of Ruling’, the trial court noted that ‘Plaintiff by her own admissions received the only necessary notice in the probate matter, to-wit, the notice of the hearing of the application for appointment of an administrator’, and that ‘Having such notice, plaintiff was bound by the proceedings and fraud committed was intrinsic, Westphal v. Westphal, 20 Cal.2d 393, 126 P.2d 105, unless it prevented plaintiff from appearing therein’.

The Third Amended Complaint, here under discussion, contains certain new allegations to the effect that shortly prior to receiving notice of hearing of the petition for administration, Elizabeth B. Low had requested plaintiff's daughter ‘to inform the plaintiff that she would do everything possible to protect plaintiff's interest in the estate, that there was no need for her to retain an attorney, that she could put as much trust and confidence in her as she could in her son, if he were alive, that the estate was fairly substantial, and after the six months waiting period, required by law, she could expect a handsome share of her son's assets. That a short time before his death, plaintiff's son informed her that his wife possessed meritorious characteristics and that if anything should happen to him both his wife and plaintiff would be well provided for out of his estate.’

Also alleged therein, is a letter from defendant Low to the plaintiff's son, dated two days after plaintiff received notice of the probate proceedings, stating that ‘There is the usual red tape’; that it was necessary to keep a definite book account, and that ‘I have the lease and have promised to type it up for use’.

It is further alleged that about December 3, 1952, Elizabeth B. Low, again wrote to plaintiff's son advising that the estate should be closed within approximately 60 days; that it was not the defendant's intention to sell the hotel which was leased, but that ‘Should I decide to sell it later, of course I shall be glad to give you a chance. I did not know you would be interested in it.’ Also alleged is the fact that plaintiff and the daughter knew that the decedent held a lease on the hotel ‘in his own name and that the lease contained an option for renewal’, and that ‘it did not occur to either said Cecilia Giroue (daughter) or plaintiff that it was at all possible for said defendant to obtain a renewal of the lease in her own name. That they were therefore misled by the statement, ‘I have a new lease’, and believed that said defendant had obtained a new lease for the estate'.

Paragraph IX alleges that ‘the many misleading and false statements made to her and for her benefit and the deception practiced upon her by the defendant, Elizabeth B. Low, alias, as hereinbefore set forth, in effect, prevented her from appearing in or objecting to the probate proceedings before the Court Order distributing her son's estate became final. That, realizing that a fraud had been practiced upon her, plaintiff, about May 1, 1953, retained an attorney to make an investigation of the probate proceedings'. The trial court sustained demurrers to this Third Amended Complaint, with leave to amend; plaintiff declined to amend the pleading and instituted this appeal.

An examination of the Third Amended Complaint fails to indicate that the deficiencies noted in the three preceding complaints have in any manner been cured. The quoted language used by the trial court in sustaining the demurrers to the Second Amended Complaint, is fully applicable to the allegations of the Third Amended Complaint. Although certain additional details are alleged, the general picture is the same. The fact remains that plaintiff admits receiving notice in the probate matter, and having received such notice is bound by the proceedings unless extrinsic fraud is sufficiently alleged. As said by the trial court, the alleged fraud, if any existed, was intrinsic and not extrinsic, and was not of such a nature as to prevent the plaintiff from appearing in the probate proceedings. Moreover, as said in the respondents' brief, it appears that the defendant ‘was in frequent communication with plaintiff and that plaintiff was being advised of developments in the probating of the estate’. Appellant has cited no case in which, under a comparable state of facts, relief has been extended to one who has received notice of probate proceedings and has failed to enter any objection thereto.

Plaintiff's second cause of action, seeking to collaterally attack the defendant's Nevada divorce and subsequent marriage to the decedent, is likewise vulnerable. It is there alleged that the defendant Low secured a decree of divorce from a previous husband, at Las Vegas, Nevada on March 20, 1948, and ‘That within six weeks prior to obtaining said divorce, said defendant was domiciled in the State of California. That immediately following the granting of said divorce, defendant Elizabeth B. Low resumed her residence in the State of California, and has ever since continued to reside in said state’, and that the previous husband was likewise domiciled in California.

The applicable rule is stated in Mumma v. Mumma, 86 Cal.App.2d 133, 135, 194 P.2d 24, 26, as follows: ‘It has been held that a stranger to a foreign divorce decree can impeach it collaterally for fraud only when it injuriously affects him. Within this rule is has also been held that one who subsequently marries one of the divorced parties has no such interest as will enable him to attack the decree’. The only one who could complain of the alleged fraud, according to that case, ‘is the one who was injured thereby, his first wife, and she has not seen fit to do so’. Under the holding in that case, plaintiff's son, the decedent, would have been prevented from attacking the Nevada decree. Following the same line of reasoning, the appellant, mother of the decedent, could have no greater right than the son, and, at the time the decree in question was entered, plaintiff had no possible rights which could be effected by such divorce decree.

The repeated attempts to amend the original and subsequent complaints indicate the impossibility of stating a sufficient cause of action. Under the circumstances disclosed by the record, there was no error in sustaining the defendants' demurrers.

The judgment is affirmed.

I concur in that portion of the judgment which affirms the action of the trial court in sustaining defendants' demurrer to the second cause of action, but I dissent from that part of the majority opinion which upholds the action of the trial court in sustaining defendants' demurrer to the first cause of action.

Assuming as we must on demurrer, the truth of the allegations pleaded in the first cause of action, we find therein that appellant was the mother of the decedent Bernard J. Craney who, prior to his death, contributed to her support at regular intervals; that appellant mother is an elderly person residing some 500 miles distant from Los Angeles where the probate proceedings were had. It is further alleged that respondent widow frequently corresponded with appellant mother of the decedent, referring to the latter as ‘dear mother Craney’ and made statements to her that the decedent's mother ‘should not worry about her son's affairs', that she (respondent wife) ‘would always carry out his wishes'; ‘that she would carry on financially’ the ‘same as her husband had’ been doing, and that she ‘would even do better by her’, and ‘would keep her posted’ as to everything that went on concerning the estate of appellant's son. It was further alleged that after appellant mother had received a postal card notice from the county clerk advising that an Administrator of her son's estate would be appointed, respondent widow sent the mother a message that ‘she (respondent wife) would do everything possible to protect plaintiff's interest in the estate, that there was no need for her to retain an attorney, that she could put as much trust and confidence in her as she could in her son, if he was alive, that the estate was fairly substantial, and after the six months waiting period, required by law, she could expect a handsome share of her son's assets.’ It was also alleged that respondent widow retained respondent Shapiro as her attorney, and acting upon the latter's advice, nominated the attorney's secretary, respondent Mildred Allis, to act as Administratrix, and that she was so appointed. That all respondents knew that the estate was separate property and that appellant mother was entitled to inherit one-half thereof.

From the foregoing I am impressed that the test to be applied is whether it appears therefrom that appellant mother was prevented from appearing in the estate proceeding by fraud or deception practiced upon her by the widow of her son. To my mind, if the aforesaid allegations do not constitute extrinsic fraud then there can be no such thing as extrinsic fraud unless a person were kept away from his day in court by physical force or violence. Duffy v. Duffy, 82 Cal.App.2d 203, 210, 186 P.2d 61.

While it is true that a decree of distribution which has become final is conclusive of the rights of those interested in the estate, it is nevertheless true that where through extrinsic fraud practiced in a probate proceeding, distributees have obtained property to which they are not entitled, equity will intervene to do justice, not by overthrowing the decree of distribution but by declaring that the distributees hold the property, or a portion thereof, in trust for the rightful owners. In re Estate of Madsen, 31 Cal.App.2d 240, 243, 87 P.2d 903. The instant proceeding is just such an action addressed to a court vested with general equity jurisdiction.

I am persuaded that appellant mother herein, under the allegations of the first cause of action of her third amended complaint, is entitled to her day in court, and that the judgment sustaining the general demurrer as to said first cause of action should be reversed, and respondents be permitted a reasonable time to answer.

DORAN, Justice.

DRAPEAU, J., concurs.