IN RE: the ESTATE of George K. HARVEY

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

IN RE: the ESTATE of George K. HARVEY, Conservatee. Baldo M. KRISTOVICH, Publlc Administrator, Appellant, v. Pearl W. McCORD, Conservater, Respondent.

Civ. 34713.

Decided: March 19, 1970

John D. Maharg, County Counsel, and Wilcox R. Stoddard, Asst. County Counsel, for appellant. Stephen Pace, Long Beach, for respondent.

The Public Administrator, as administrator of deceased conservatee's estate, appeals from two orders that were made during the period of the conservatorship under the following circumstances. On July 12, 1968, temporary letters of conservatorship (person and estate) were issued to respondent conservator; on August 5, 1968, she qualified as permanent conservator. Following her petition for instructions in that regard, on September 16, 1968, the court made its order authorizing respondent to employ her attorney, Stephen Pace, to travel to Scotland and conduct a search for lawful heirs of the conservatee; and providing that upon completion of the search, not to exceed $2,500.00 by way of travel expenses, a reasonable fee for services would be determined by the court. Before Mr. Pace returned from Scotland, the conservatee died on September 24, 1968. Thereafter, on November 12, 1968, appellant Public Administrator moved under section 473, Code of Civil Procedure, to set aside the September 16 order; on the same date he also filed objections to the conservator's first and final account. Each of the foregoing challenged the jurisdiction of the court to make the September 16 order; the objections to the account included the further claim that the fees requested by both the conservator and her attorney were excessive. Rejecting the challenge to its jurisdiction to make the order, the trial court (1) denied the motion under section 473 and (2) overruled objections to the account by settling such account, allowing fees, and discharging the conservator. These are the two orders from which the present appeal is taken.

Preliminarily, we dispose of respondent's contention that the two orders are not appealable. As to the order denying relief under section 473, the general rule allowing appeals from such orders apparently does not apply in probate proceedings. (Estate of O'Dea, 15 Cal.2d 637, 638–639, 104 P.2d 368.) However, as pointed out in O'Dea, an exception is recognized where the motion under such statute is the only way in which an aggrieved party can protect his rights, citing Estate of Baker, 170 Cal. 578, 150 P. 989. In the present case the Public Administrator did not become administrator of decedent's estate until after the order of September 16 was made; upon qualifying as personal representative he promptly moved to set aside the order. But while we are not unsympathetic to appellant's claim that the situation at bar falls within the Baker exception, it does not appear that the motion under section 473 was the only way in which the rights of his intestate could be protected. There was the additional remedy, resorted to by appellant contemporaneously with the prior motion, of filing objections to the conservator's account which included a petition for the allowance of fees for the services here questioned. Both matters attacked the jurisdiction of the court to render the order, and both challenged the sufficiency of the evidence to support either the original order or the requests for fees in the conservator's account filed for settlement. Only because of such circumstances, no good purpose would be served by considering the merits of the appeal from the order denying the motion under section 473, and the same is dismissed. As to the second order, however, contrary to respondent's assertion that appellant has appealed from the overruling of his objections to the account, a nonappealable order (see Estate of O'Connor, 200 Cal. 646, 649, 254 P. 269), the notice of appeal clearly states that in addition to the denial of relief under section 473, appeal is taken from the order granting conservator's petition for discharge, allowing and approving her account and making certain allowances. Since the conservator was authorized and required to file an account, under the provisions of section 2101, Probate Code,1 the order allowing the fees requested in the account was appealable.

The conservator, a retired registered nurse, was a longtime friend of the conservatee; in the petition for instructions she alleged that she sought such appointment because he was in immediate need of someone to care for him and because no living relatives, after diligent search therefor, could be found. The petition also alleged that the conservatee (apparently an elderly man) had been hospitalized following her appointment ‘for an inoperable brain tumor and is listed as a terminal case,’ adding that he ‘has not had a moment of lucid consciousness since the appointment.’ Upon information and belief it was then alleged that the conservatee was born in Dunoon, Scotland; that he had three brothers and one sister, all older, and that the sister died many years ago without issue; and that one brother had a daughter, Isa, born in Scotland between 1914 and 1919.2 After alleging that letters had been sent to certain Scottish newspapers and other possible sources of information without response, the petition stated that long distance research possibilities had been exhausted and it would be to the best interests of the conservatee and his estate that the conservator be authorized to employ her attorney to proceed to Scotland for a more effective search. The petition concludes with the allegation that the travel expenses proposed, not to exceed $2,500.00, would be but a small portion of the estate which had in excess of $250,000.00 cash on hand and a substantial amount of real estate.

Before this court appellant renews his two contentions made below: (1) the trial court had no authority to make an order authorizing a conservator to search for possible heirs of a conservatee, and (2) assuming such jurisdiction, the allegations in the petition for instructions and the petition for discharge did not warrant the making of the order and the subsequent allowance of fees . After properly asserting that the court in a conservatorship proceeding exercises its probate jurisdiction, appellant points out that the court, while so sitting, “has no other powers than those given by statute and such incidental powers as pertain to it and enabling the court to exercise the jurisdiction conferred upon it, and can only determine those questions or matters arising in the estate which it is authorized to do. Thus, in the exercise of the powers conferred upon it, its jurisdiction is limited and special, or limited and statutory.' [Citation.]' (McPike v. Superior Court, 220 Cal. 254, 258, 30 P.2d 17, 18.) There is no statutory authorization, urges appellant, for the ascertainment by a conservator of his conservatee's heirs, although such authority is given the probate court in proceedings relating to the estates of persons deceased. (Prob.Code, §§ 1080, 1081.) Absent this statutory power, in light of the principles approved in McPike and for other reasons, presently to be stated, we think appellant's challenge to the allowance of fees must be sustained.

Conservatorships being in effect creatures of statute, we look to the whole statutory scheme to discover the legislative intent in the enactment of the pertinent legislation. As indicated by the very title of Division 5, ‘Conservatorship,’ proceedings thereunder are for the care and preservation of the conservatee and his property, being initiated upon sufficient showing to the superior court that any adult person, whether by reason of advanced age, illness or other specified causes, is unable properly to care for himself or his property. (Prob.Code, § 1751.) Provision is thereafter made whereby the conservator is vested with the general powers possessed by a guardian of an incompetent ‘and, if granted by the court, the additional powers authorized by Section 1853 of this code’ (Prob.Code, § 1852); nowhere in Division 7, where they are so found, is any provision made for a guardian to ascertain the existence of heirs. Section 1853, supra, states that the court, on his application, ‘may grant to a conservator * * * the following additional powers * * *’; although more than a score of acts and activities are thereafter listed, not one is at all comparable or related to a search for possible heirs; too, all the acts or activities therein set forth pertain to the estate and not to the person of the conservatee.

This brings us to section 1860 upon the provisions of which (as appears from the transcript of oral proceedings at the hearing below) the court relied for the orders rendered. Therein it is provided in pertinent part that ‘The court, upon petition of the conservator * * * after notice of the hearing on such petition has been given for the period and in the manner required by Section 1200 of this code,3 and after such hearing, may authorize and instruct the conservator or approve and confirm firm his acts in the management, disposition, care, protection, operation, or preservation of the conservatorship property or the incurring or payment of costs, fees or expenses, or in the care, maintenance, support and protection of the conservatee.’ Unlike section 1853, supra, whose provisions relate solely to the estate, as distinguished from the person, of the conservatee, section 1860 makes provision for instruction by the court, and subsequent approval, of the conservator's acts ‘in the care, maintenance, support and protection of the conservatee.’ The court's reliance on the language just quoted was rationalized during the course of the hearing.4

We believe that ‘the broad language of 1860,’ quoting the court's last statement in footnote 4, must be read with the language of other sections of the Probate Code governing conservatorships, hereinbefore discussed, as well as other sections of the same code dealing with probate procedures. Too, assuming that the court has ‘a very broad power in a case,’ this was certainly not a case where such power should be exercised. Even if an heir apparent had been found in Europe, no aid or comfort could have been rendered by him to a conservatee who had ‘an inoperable tumor and is listed as a terminal case’ with not a moment of lucid consciousness.

Finally, we cannot overlook the fact that appellant, as the administrator of decedent's estate, has certain responsibilities of his own in such capacity; thus, he cannot represent to the court that he made no search for heirs because, forsooth, such search was carried out by somebody else. Too, should the conservator be allowed to proceed as here, it would make a shambles of accepted probate procedures which have had the guidance of decisional law over the years. As stated in Texas Co. v. Bank of America, etc. Assn., 5 Cal.2d 35, 39, 53 P.2d 127, 130, “‘Probate proceedings being purely statutory, and therefore special in their nature, the superior court, although a court of general jurisdiction, is circumscribed in this class of proceedings by the provisions of the statute conferring such jurisdiction, and may not competently proceed in a manner essentially different from that provided [citation].”

Except for the items and disbursements challenged by this appeal, allowance should of course be made for all other reasonable expenses and disbursements of the conservator.

Insofar as portions of the lump sum fees awarded the conservator and her attorney are incident to a search for the conservatee's heirs, and insofar as it approves and allows the travel expenses of conservator's attorney in connection with such search, the order settling the first and final account and discharging the conservator is reversed and the cause remanded for further proceedings consistent with the views herein expressed; in all other respects such order is affirmed.


1.  Probate Code, section 2101: ‘An appeal may be taken * * * from any judgmment, order or decree authorized in this division * * *.’

2.  In the petition for discharge it is alleged that the attorney located one Isabella Clark who ‘beyond a doubt’ is the adopted daughter of David, the conservatee's deceased brother.

3.  The order of September 16, 1968 (authorizing legal services and expenses) recites, inter alia, that ‘all notices of the hearing have been given as required by law * * *’ and, therefore, does not justify its characterization by appellant as being ‘ex parte.’

4.  ‘THE COURT: By way of illustration, and I realize that the Code cannot specify, and it is wise in not specifying each and every possible act that a conservator may find himself confronted with or the need for taking action, so that the Code in its very general language advisedly does use the general words we find, for example, in Section 1860. Don't you think a wise and judicial conservator, in a proper case might well consult with a relative of the conservatee as to the future care and maintenance that they might have, with all due respect, especially a non-related conservator, if it might be possible to contact the geirs, find out what they want done with this person as he might not be able to speak for himself, in reference to all of those incidental things that might arise from his inability, physical inability to indicate what he wants done?‘MR. HINOJOSA [Deputy County Counsel]: That may be true, your Honor.‘THE COURT: I would think so.‘MR. HINOJOSA: I don't think it falls within the management of the estate. It might fall within the care of the conservatee if the relative made the contact. It might be true if the heirs were known and if they were willing to act, or if there was a degree of intimacy that the conservatee had with the heirs. Here all there was before the Court was that the attorney had searched for a will or other evidence indicating that the heirs' whereabouts were unknown, and that he thought it was in the best interest that he go looking for them. It amounted really to nothing more than heir hunting and it authorized the attorney to do so.‘THE COURT: Legitimate heir hunting.‘MR. HINOJOSA: And at that time the brain tumor was inoperable. In the answer to the interrogatories it was noted that they consulted with three doctors, and I imagine the chances for Mr. Harvey's survival were minimal. In fact, he died eight days after the order was entered, during the time that Mr. Pace was in England, so I don't think there would be any benefit to the estate here.‘THE COURT: That is debatable. Let's assume he lived for as long as a year. I possibly may have been influenced objectively in this matter realizing that it was only a conservatorship as distinguished from a probate estate. I may have acted subjectively and said to myself, if I were a distantly located relative, a nephew or niece or sister of a certain individual in New York, from where I originated myself, I would certainly like to know before he is dead, and certainly if I am going to become one of his heirs, I would like to know what more I can do for him during his lifetime, and somebody should have gotten in touch with me or should get in touch with me. That may have been my subjective reasoning and influence which made me feel this is a proper situation. He might have had very close and intimate relatives, but for one reason or another they were physically separated.‘MR. HINOJOSA: I think this goes toward the argument it was abuse of discretion as against the argument that it was in excess of your jurisdiction. With respect to that point the petition for the order pointed out that the heirs were unknown, pointed out that there was nothing in the last thirty years and he had torn off all the addresses of the letters that he had received.‘THE COURT: Whatever the reasons for that may have been, it would not be reasonable for me to decide any other way. The heirs might well say, ‘We want him buried here or we want him buried there.’‘MR. HINOJOSA: I think the heirs would have an interest, but I think they have an interest in the administration. How could they have an interest in the conservatorship which was designed precisely for the wellbeing of the conservatee.‘THE COURT: That might be reflected in what is going to happen to him. It might reflect later on when they should be contacted and be told where to bury him. That is all prior to probate.‘I think the broad language of 1860 legally permitted the Court to make the order it did, and of course I will be glad to have my mind dissbused by any mandate proceedings. I think the Court has real broad powers and exercises a very broad power in a proper case.’

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.