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

Edna M. COLLISON, as Administratrix-With-The-Will-Annexed of the Estate of Masie E. O'Brien, Deceased, Plaintiff, v. Louis Franklin THOMAS, Successor Administrator of the Estate of William P. O'Brien, Deceased, Defendant.

Edna M. COLLISON, as Administratrix-With-The-Will-Annexed of the Estate of Masie E. O'Brien, Deceased, Plaintiff, Cross-Defendant and Appellant, Charles T. Rippy, Cross-Defendant and Appellant, v. Louis Franklin THOMAS, Successor Administrator of the Estate of William P. O'Brien, Deceased, Defendant, Cross-Complainant and Respondent.*

Civ. 24567.

Decided: August 08, 1960

Charles T. Rippy, Torrance, for appellants. Montgomery G. Rice, Los Angeles, for respondent.

Plaintiff, Edna M. Collison, as administratrix of the estate of Masie E. O'Brien, instituted this action against the estate of Masie's husband, William, P. O'Brien, an incompetent, to quiet title to three parcels of real property in the city of Torrance, to reform certain instruments in connection with the acquisition of title thereto, and for an accounting and damages. William's representative answered and cross-complained to quiet title and to recover rentals collected on the properties over a period of years. Brought in as cross-defendants were plaintiff in her individual capacity and Charles T. Rippy, as trustee. In the course of proceedings below, William died and Mrs. Leola B. Kellogg was named administratrix; she also died and defendant Thomas was substituted as successor administrator. The trial court found ownership of the properties to be in William's estate and adjudged that the successor administrator, as trustee for the cross-complainant, recover from Rippy alone the sum of $3,084 (plus interest) representing rentals received during the period in question. From the adverse portions of the judgment the administratrix and Rippy have appealed.

Certain background facts were stipulated to in a document filed with the court at pre-trial conference and entitled ‘Stipulation As to Facts Agreed Upon and To Be Used As Evidence on Trial.’ Therein it appears that on May 27, 1937, William was declared incompetent and defendant Thomas appointed his guardian, continuing in that capacity until William's death on September 24, 1957. William and Masie were the owners of three lots in Redondo Beach. This property, designated Lots 1, 25 and 26, was inventoried as part of William's estate which paid all taxes, insurance and maintenance thereon. On September 2, 1952, at Masie's request, the guardian petitioned the probate court to authorize an exchange of the Redondo property for a more suitable residence in Torrance. The court so ordered; however, in the course of carrying out the court's order, it developed that Lots 1 and 26 stood of record in the name of Masie by reason of a 1923 quitclaim conveyance from William to Masie, and Lot 25 stood in joint tenancy. The probate court having been advised of these facts, the guardian on May 15, 1953, published notice of hearing on the proposed exchange of properties; thereafter, on May 28, 1953, the probate court found that record title to Lots 1 and 26 was in Masie and Lot 25 in joint tenancy, and ordered that a waiver be executed from Masie to William's estate so as to vest in the latter all interest she had in the properties; by the same order, the guardian was authorized to sell the Redondo property and purchase the property in Torrance, taking title thereto in William's name. Masie, that same day, quitclaimed her interest in the Redondo property to William; also on that day, the guardian deeded the Redondo property to parties named Vollmer, took their note in William's favor, and thereafter collected the principal and interest thereon. The following day, May 29, 1953, the guardian bought the Torrance property in William's name and has since paid all installments, taxes and insurance. Approximately one month later, on June 23, 1953, Masie executed and filed for record a Declaration of Homestead for herself and husband, covering the Torrance property; (at the trial, it was stipulated that there was no technical defect in this declaration). On December 29, 1955, Masie died and plaintiff Collison was appointed her administratrix; she commenced the instant action against William's estate in May of 1956, at approximately which time she and cross-defendant Rippy (as trustee) began collecting rents, at $100 per month, from the Torrance property without accounting to William's guardian. William died on September 24, 1957, and Mrs. Kellogg was named administratrix and subsequently substituted as William's representative in the place and stead of the guardian who in the interim had transferred to her the assets of the incompetent's estate.

The pre-trial judge ordered the foregoing stipulation ‘incorporated’ in his pre-trial order which declared, among other things, ‘(I)ssues to be presented to the trial court are as framed in said statement’. Although there might have been a greater measure of compliance with the requirement of Rule 8.6 of Amendments to Pre-Trial Conferences (47 Cal.2d 3, 6–7) respecting a statement of ‘the * * * legal contentions made by each party as to the issues remaining in dispute’, plaintiff never made a request for modification as provided by Rule 8.8. Since she failed to do so, ti is now contended that the issues raised by the pleadings were superseded by the pre-trial order (Dell 'Orto v. Dell 'Orto, 166 Cal.App.2d 825, 830–831, 334 P.2d 97); probably it is debatable whether the pleadings are inconsistent with the type of pre-trial order herein rendered, but we do not decide the point for reasons hereinafter appearing. The matter proceeded to trial on May 19, 1959. In view of the deficiency in the pretrial order, it is not surprising that the trial judge in chambers summoned counsel for both parties for what is referred to in briefs as another ‘pre-trial conference’. Upon taking the bench, the court stated that ‘(N)either the pre-trial conference order nor the statement sets forth the issues that are to be determined in this case;’ continuing, ‘(H)owever, the Court believes there is only one issue upon which the Court should take evidence and that is with reference to there being any fraud on the part of anyone insofar as Masie E. O'Brien was concerned in connection with the making, verifying and recording of the homestead which she placed on the Torrance property.’ Limited to that issue, evidence was then taken and the court orally decided against plaintiff's claims; proof was then forthcoming on the cross-complaint by the cross-complainant on the amount of money collected by the cross-defendants; and findings were ordered to be prepared quieting title in William's estate and in favor of his estate for $3,084 plus interest on the cross-complaint.

The following day, court and counsel learned that Mrs. Kellogg, the administratrix, had died the previous morning while evidence was being received. No further action of any kind was taken until on July 27, 1959. After timely notice thereof, counsel for William's estate moved the substitution of Thomas, appointed successor administrator in the interim, as defendant and cross-complainant. While plaintiff's counsel did not oppose the substitution, he stated that he was ‘objecting to * * * the fact that most of the evidence in connection with the rents was taken after the death of the preceding party to the action and that part of the case was not passed upon until after her death.’ The trial court ruled against a retrial, partial or otherwise; findings and judgment followed in due course.

From appellant's opening brief, which is somewhat rambling in nature and open to the further criticism that it fails to make adequate reference to the record (Rule 15(a), Rules on Appeal), we have extracted the following principal contentions on appeal—(1) the trial court erroneously foreclosed proof that Masie was fraudulently induced to quitclaim her interest in the Redondo property to William's estate; (2) insufficiency of the evidence to support the implied finding that the property was not homesteaded as a result of fraud or mistake; (3) the death during the trial of the then acting administratrix deprived the court of further jurisdiction; (4) the cross-complaint failed to state a cause of action by reason of its omission to allege the existence of any heirs; (5) jurisdiction of the cross-complaint was in the municipal court; and (6) the judgment as it pertained to rentals collected was excessive.

The second count of the complaint alleged, among other things, that when an exchange of the Redondo property was sought in 1953, William's guardian fraudulently concealed from Masie the fact that the Torrance property was being acquired in William's name alone, and that by quit-claiming the property to William she was deprived of the right to dispose of her interest therein by will. The answer by way of affirmative defense alleged the execution by Masie, on a subsequent date, of a declaration of homestead covering the Torrance property. ‘A homestead declared by a wife vests absolutely in the husband upon the death of the wife (citations)’ (Estate of Durham, 108 Cal.App.2d 154, 155, 238 P.2d 1061), which is but a restatement of the statutory law of this state (Section 663, Probate Code). Thus, ‘(I)f the homestead selected by husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property, or from the separate property of the person selecting or joining in the selection of the same * * * the homestead vests, on the death the either spouse, absolutely in the survivor’ (Probate Code, Section 663). Masie's administratrix, plaintiff herein, admitted that there was no claim of technical defect in the declaration executed by her testatrix; the trial court, therefore, properly disposed of the problem in this fashion; ‘Unless the Court were to find there was something irregular in the making of the declaration of homestead, there would be no useful purpose served in taking any evidence on the subject of the other alleged fraud.’ Irrespective of the character of the property in suit, whether community or separate, Masie divested herself of the power of further alienation of such property, by will or otherwise; in such a case ‘the deceased spouse at the moment of his or her death has no interest in the property which is capable of being effectually devised (citation), or, it would appear to follow, passing by succession * * *.’ (Estate of Beer, 178 Cal. 54, 57, 171 P. 1062, 1063.) Under the stipulated facts, the court below correctly limited the proof to the claim that the declaration was induced by fraud or mistake.

The next contention relates to the sufficiency of the evidence to support the implied finding reached upon the issue thus limited. Plaintiff makes the rather ingenious argument that William's guardian stood in place of her husband; therefore, since there was some participation by him in certain preliminaries leading up to execution of the homestead declaration, and since it was prepared by the guardian's attorney, a presumption of fraud and undue influence arose by virtue of the confidential relationship of the parties. Assuming the validity of the argument, the presumption is a rebuttable one and may be overcome by a showing that the confidence was not abused. We are not persuaded that this is not such a case; as a matter of fact, the advice given Masie by Mrs. Kellogg was wise advice. The wife of a government pensioner, Masie was younger than her husband, who had been ill for more than 15 years, and she had every expectation of surviving him and acquiring full and clear title to the premises in question. It was for the trial court to determine whether advantage was obtained, and its decision will not be reversed if supported by substantial evidence (Weil v. Weil, 37 Cal.2d 770, 788, 236 P.2d 159).

Coming now to the claim that the court was divested of jurisdiction by the death during the trial of Mrs. Kellogg, the then administratrix, the record reveals that proceedings commenced at 11:05 A.M.; a brief period of time was then consumed by the court in its analysis of the issues to be determined—this, pursuant to the conference theretofore had with counsel in chambers. The plaintiff was sworn and testified briefly in support of the fraud or mistake claimed to vitiate the homestead declaration, following which the court indicated its intention to find in defendant's favor as to that issue. A certified photocopy of Mrs. Kellogg's death, made a part of the record, discloses that death occurred at 11:20 A.M.; as stated earlier, nobody concerned was apprised of that fact until the next day. Following Mrs. Collison's appearance on the stand, testimony was taken on the matters set forth in the cross-complaint, the court recessing at 11:45 A.M. until 2:50 P.M., when further testimony was received. While ordinarily it might have required a stopwatch of precisional accuracy to determine whether the death of the administratrix ensued before the conclusion of testimony on the complaint and the court's oral announcement of its decision upon the issues of fact framed by the pleadings, plaintiff's counsel at a later session supplied the court with sufficient information to justify (in part) the action eventually taken. As mentioned earlier, the successor was not substituted until several weeks later and after notice duly given. At that time counsel for plaintiff advised the court that there was ‘no objection, your Honor, to the successor in interest or the administrator to be made a party to this case, but what the plaintiff is objecting to is the fact that most of the evidence in connection with the rents taken was taken after the death of the preceding party to the action and that part of the case was not passed upon until after her death * * *’ Counsel must be deemed to have been thoroughly conversant with the time element in question when such representation was made to the court; he thus conceded that the court at the moment of Mrs. Kellogg's death was engaged with the cross-complaint involving issues severable from the complaint and consolidated for trial therewith to avoid the expense and vexation of multiplicity of suits. In this latter respect, it has been said that a cross-complaint constitutes a separate action although it is sometimes considered part of a single action under the final judgment rule (Witkin, California Procedure, 1580). For reasons hereinafter stated, plaintiff's present point has merit but only to the extent that a partial retrial, limited to the cross-complaint, should have been ordered. As a general rule, and the facts here do not call for any exception thereto, the substituted party takes up the litigation with all of its benefits and with all of its burdens, just where the predecessor dropped it (67 C.J.S. Parties § 89, p. 1085, and authorities therein cited). See generally 37 Cal.Jur.2d ‘Parties' 373.

Since personal representatives of a deceased, upon their appointment and even before their substitution, become the real parties in interest (Boyd v. Lancaster, 32 Cal.App.2d 574, 579, 90 P.2d 317), they must be brought into the suit (with one possible exception not here pertinent) before they can be affected by any judgment (Boyd v. Lancaster, supra). That being so, the rule should likewise apply to the successor administrator at bar.

We are not here concerned with the validity of a nunc pro tunc order to supply deficiencies in an order or judgment already actually made or rendered so as to conform to the truth; nor is Section 669, Code of Civil Procedure, operative since that statute relates to rendition of a judgment after a decision upon any issue of fact. As stated in Estate of Pillsbury, 175 Cal. 454, 461, 166 P. 11, 14, 3 A.L.R. 1396, ‘the determinative consideration moving the court is whether or not the action at the death of the party was ready for the rendition of final judgment.’ In the present state of the record before us, we cannot say that the trial court was prepared to render a final judgment covering all of the issues as of the time of Mrs. Kellogg's death. In Leavitt v. Gibson, 3, Cal.2d 90, 43 P.2d 1091, the general problem was discussed with much thoroughness, and it was aptly stated that ‘(T)he law does not favor such an abortive termination of the trial of causes as would result from declaring a mistrial for the reasons herein urged’ (3 Cal.2d at page 106, 43 P.2d at page 1098) but there the evidence had been wholly concluded and ‘the only act left undone in the case (was) the filing of an overdue reply brief * * *.’ (3 Cal.2d at page 106, 43 P.2d at page 1098). Since a court should cease to exercise its jurisdiction over a party at his death until an authorized representative has been appointed and substituted (Todhunter v. Klemmer, 134 Cal. 60, 63, 66 P. 75), and since a judgment against a person after his death is reversible if the fact and time of death (as here) appear in the record (Boyd v. Lancaster, supra, 32 Cal.2d 580, 90 P.2d 317) plaintiff's contention in part must be sustained. Our views in this regard are not to be construed as a disapproval of the trial court's declaration, when plaintiff's motion to suspend further proceedings was taken under submission, that if a retrial was to be had, ‘it will be retried in this department.’

Plaintiff's next two points are devoid of merit. The first, the failure of the cross-complaint to allege the existence of heirs, relies on Section 377, Code of Civil Procedure, and Section 547, Probate Code, which provide that the personal representative may institute an action for wrongful death on damage to property in the name of the heirs; this is not such an action, and hence the two cases cited are not controlling. The second, jurisdiction of the cross-complaint was solely in the municipal court, is wholly untenable; while the cross-complaint did not allege the total amount of rents collected and may have been below the jurisdictional minimum, it is settled that where an action is instituted in the superior court a counterclaim or cross-complaint may be asserted for an amount within the jurisdiction of an inferior court, Emery v. Pacific Employers Ins. Co., 8 Cal.2d 663, 667, 67 P.2d 1046.

Finally, it is contended that the court gave judgment for two months' rent accruing after the cross-complaint was filed. The pleading was never amended to conform to proof (which may be done upon further proceedings herein), hence the point is well taken.

As to Collison, as administratrix, those portions of the judgment appealed from with respect to the complaint are affirmed; in all other respects, the portions of the judgment appealed from are reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Each party will bear his or her costs on appeal.

LILLIE, Justice.

WOOD, P. J., and FOURT, J., concur.