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District Court of Appeal, Third District, California.

IN RE: the ESTATE of Luigl SCARLATA, also known as Louis Scarlata, Deceased. John Scarlata, Frank Scarlata, Jeanne Dowhower, as general guardian for Louis Scarlata and Marilyn Scarlata, minors, Fibreboard Paper Products Corporation, a corporation, and Schmidt Lithograph Company, a corporation, Appellants, Bank of America National Trust and Saving Association, a national banking association, Executor, Respondent. In the Matter of the ESTATE of Rosa SCARLATA, also known as Rose Scarlata and Rosalia Scarlata, Deceased. John Scarlata, Frank Scarlata, Jeanne Dowhower, as general guardian for Louis Scarlata and Marilyn Scarlata, minors, Fibreboard Paper Products Corporation, a corporation, and Schmidt Lithograph Company, a corporation, Appellants, Bank of America National Trust and Savings Association, a national banking association, Executor, Respondent.*

Civ. 9892, 9893.

Decided: December 29, 1960

Wadsworth & Souza, Tracy, John M. Burnett, Manteca, James M. Conners and Vernon D. Stokes, San Francisco, for appellants. Mazzera, Snyder & DeMartini, Stockton, for respondents.

Luigi Scarlata and Rosa Scarlata, husband and wife, passed away on July 11, 1955. Luigi died two hours before Rosa. During their marriage of about twenty-four years, they acquired real and personal property, the major portion of which at the time of Luigi's death was vested in the names of Luigi and Rosa as joint tenants.

The Bank of America National Trust and Savings Association, respondent herein, was appointed executor of the wills of both decedents. In both estates the time allowed by law to creditors to file or present claims expired on February 4, 1956.

Respondent executor, at the time of filing its second account and report in each estate in December, 1958, also filed in each estate a verified ‘Petition for Instructions and For Order Re Payment of Claims.’ These petitions stated that the property in Luigi's estate designated as community property had a total value of $42,772.88, and that the total appraised value of Rosa's estate was $264,597.94. (This included all real property held in joint tenancy at the time of Luigi's death, which was designated in the inventory in Rosa's estate as her separate property. These values were subsequently reduced by reappraisement after sales in probate.) It was alleged that Luigi's estate had been so depleted during probate that it could not pay general creditors in full; that it was the belief of the common executor that although the real property inventoried in Rosa's estate was held by the decedents as joint tenants, it was nevertheless their intention that the same be community property. It was also alleged that some of the creditors filed claims in both estates while others filed in one estate or the other. The court was asked for instructions as to the manner in which claims of all creditors of both estates should be treated.

On January 23, 1959, the court, sitting in probate, made an order in each estate finding that all of the assets of each estate were community property. The orders instructed the common executor not to limit the payment of creditors of either estate to the assets of the particular estate in which claims might have been filed but to marshal, utilize and make available the assets of both estates for the payment of all general creditors who had presented or filed claims in either estate. No appeal was taken from the foregoing orders. Thereafter the common executor filed in each estate its third account and report and petitioned for an order directing payment of claims in accordance with the above-mentioned order of January 23, 1959. Written objections thereto were filed by certain creditors and by the heirs of Rosa Scarlata on the ground that the assets in her estate represented the proceeds of her sole and separate property, and had never been or become part of the estate of Luigi Scarlata, deceased; that the contemplated plan and procedure for the payment of claims involved and required a determination of title to the separate property of Rosa Scarlata; that the court, sitting in probate, lacked jurisdiction to determine such title and further that its preceding orders of January 23, 1959, were void and of no effect to the extent that they purported to have determined such title. Further objection was made that the order sought by the executor was improper and contrary to law in that it would result in payment of claims against the estate of Rosa which had not been filed within the time allowed by law. On September 8, 1959, the court, in accord with its order of January 23, 1959, made an order directing payment of claims in each estate as prayed for in the petition. From that order this appeal is taken.

 In so far as the order of January 23, 1959 and the order herein appealed from purport to adjudge that the property inventoried in the estate of Rosa as her separate property, derived by her as surviving joint tenant, is in fact community property of the two, the orders are void as being beyond the jurisdiction of the court, sitting in probate, to make. The court, so sitting, had no jurisdiction to determine that the property claimed by the estate of Rosa as surviving joint tenant was in fact community property belonging to the estate of Luigi and subject to probate therein. Generally speaking, the superior court, sitting in probate, has no jurisdiction to determine controversies between the representative of the estate and a third person who is not ‘in privity to the proceedings.’ 4 Witkin's Summary of California Law, page 3153, and cases cited. There are exceptions to this general rule and it is claimed herein by respondent that one of these exceptions applies to the situation confronting the court in this proceeding. Reference is made to a determination by a court sitting in probate of the community character of property. It is stated as follows in Witkin, supra, page 3158:

‘A theoretically sound but practically confusing distinction is made with respect to the power of the Probate Court to determine that property is community.

‘(1) Claim of Surviving Wife: Probate Jurisdiction. Where the wife survives, community property coming to her is subject to administration * * *; her claim to her share of the community property under Prob.C. 201 and 202 is not that of a stranger, but is rather like the claim of an heir. Hence the court adminstering the husband's estate has jurisdiction to determine what property is community and to award her share to her. [Citing cases.]’

That exception does not apply to the situation presented in the case before us. Here the estate of the wife is not claiming that property inventoried in the husband's estate as separate property of the deceased husband is in fact community, that she has a right thereto as survivor of the community and that she is therefore asserting her claim in privity with the estate. Here the estate of Rosa is claiming as Rosa, herself, could have claimed if she had been alive when the issue came up, that the property inventoried in her estate was her separate property derived by her as such because of her survivorship rights as a joint tenant. The distinction is clearly pointed out in Merola v. Superior Court, 125 Cal.App.2d 1, 269 P.2d 664. Therein a surviving wife claimed property, some as surviving joint tenant with her predeceased husband, some by gift from him inter vivos. In a proceeding for discovery brought under Sections 613–615 of the Probate Code the widow was examined touching the character of the said property and at the conclusion of the hearing the court ordered her to turn over the property so claimed by her as being the community property of herself and her predeceased husband. She brought a proceeding to review the order, claiming it to be void for lack of jurisdiction. Holding the order void, the appellate court said, 125 Cal.App.2d at page 4, 269 P.2d at page 665:

‘The basic principle is that the superior court sitting in probate is without jurisdiction to try the question of title to property as between a representative of the estate and a stranger to the estate. [Citing cases.]

‘Here the contest is clearly between the executor and a stranger to the estate. The widow claims that the property involved is her sole property; i. e., that some of it was given to her by the decedent during his lifetime and that the rest of it upon his death became her sole property as the surviving joint tenant. She claims adversely to the estate, not in privity with it * * *. The contest, therefore, is between the estate and a stranger to the estate and the principle that the probate court may not try title applies.’

In both proceedings for instructions, the lack of jurisdiction appears upon the face thereof and the orders made are void and subject to collateral attack.

The order in each estate settling the third account and report of the executor, overruling the objections filed to said account and directing payment of claims is reversed.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.