BAGLIONE v. Carmello Baglione et al., Interveners and Respondents. (1966)

This case may be said to be a ‘companion’ to the appeal this day decided in the Estate of Baglione, (Baglione v. Wagner), 49 Cal.Rptr. 32.

As we stated in our opinion in the heirship proceeding the court refused to consider any agreement claimed to exist between the spouses to the effect that the surviving spouse would be the beneficiary of a trust of the subject-matter property. Because of that ruling by the probate court this action was filed, wherein plaintiff seeks to impose a trust in her favor upon her deceased husband's share of said property, thus making the same contention herein she sought to make in the heirship proceeding. A demurrer to the complaint was sustained without leave to amend and plaintiff appeals from the judgment of dismissal.

We have determined in the estate proceeding that the court erred, that it did have jurisdiction to determine all issues with reference to the title of said property, and we have reversed the decree in the estate proceeding to permit such determination to be made. Judgment dismissing this action at bench was therefore proper regardless of the grounds therefor.

The demurrer was sustained upon the ground that the statute of frauds (Civ.Code, sec. 1624, subd. 4) was violated, that no facts constituting an estoppel were pleaded, and that the facts alleged in the complaint were insufficient to create a constructive trust. It is unnecessary for us to decide whether or not those grounds for demurrer were properly resolved in defendant's favor herein. The issues as framed in the complaint herein are not necessarily the same as those which may be brought before the probate court in conjunction with the evidence already before it when the heirship proceeding is continued.

The judgment is affirmed.

PIERCE, Presiding Justice.

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