DEN v. LUTON (1934)

This is an appeal from an order appointing Alfonso L. Den and Ysabella Den McDonald, administrators with the will annexed of the estate of Nicholas A. Den, deceased, in the place and stead of administrator Richard O. Hyland, resigned, and dismissing the contest thereto instituted by the appellant, Carrie Bell Luton.

The decedent died in 1861 leaving practically all of the real and personal property owned by him to Jose Maria Hill and Charles E. Huse, as trustees, to be partitioned and administered by them as such trustees. A decree of final distribution was entered in 1875. That decree provided for the distribution of the real and personal property, and ‘any other property not now known or discovered which may belong to the estate, or in which the estate may have any interest’ to the trustees; the administration of the estate was decreed closed, and the executors were discharged.

Despite the entry of said decree and in 1921 the record shows that letters of administration with the will annexed were granted to A. M. Ruiz, for the purpose of administering on some property as to which it appears the decedent owned a record title at the time of his death, but as to which it was represented to the court and decreed by it that a court action was necessary to determine the interest of the estate therein. In 1930, Richard O. Hyland petitioned for letters of administration with the will annexed to succeed A. M. Ruiz who had died. In that petition it is alleged that, upon the death of Ruiz, the estate remained unadministered and not closed. Hyland was appointed such administrator in January, 1931. The record does not show that there was any opposition to the petitions of Ruiz or Hyland. In March, 1933, Hyland's resignation as administrator was filed. At the same time, alfonso L. Den, a son of the decedent, and Ysabella Den McDonald, a granddaughter, petitioned for letters with the will annexed to succeed Hyland. It was to this petition that the contestant, Carrie Bell Luton, another granddaughter, filed opposition on the ground that the property in question passed under the decree of distribution in 1875, and that there was no necessity for administering it.

Were the question simply whether the property of which the decedent had record title at the time of his death passed by the decree of distribution in 1875, it might be said that the appellant had shown merit in her appeal. The authorities cited by her may be said to settle the question that title to such property passes by the decree of distribution, and that no further administration is necessary. But in the present case the record shows that there was some necessity for a court action to be brought by representatives of the estate in order to determine the extent of the decedent's or the estate's ownership in the property; and that this necessity was the basis for the appointment of an administrator with the will annexed in 1921. The subsequent orders are merely orders to make appointments to fill the vacancies caused by the death and resignation of administrators so appointed. It would seem that the question whether the necessity existed has become final by the first order made in 1921 as to which no opposition was entered, and we have here a collateral attack on that order. Assuming, however, that the question could be considered now, the contestant has made no showing in the trial court nor on the record on appeal that the claimed necessity was unfounded, and that the action of the court in making the present order was an abuse of discretion. The order appears to be supported by section 1067 of the Probate Code, which provides that the final settlement of an estate shall not prevent a subsequent issue of letters of administration with the will annexed, if other property of the estate be discovered, or if it become necessary or proper for any cause that letters should again be issued. The appellant has not shown that the cause which presumably led the court to issue the letters did not exist. See Casey v. Gibbons, 136 Cal. 368, 370, 68 P. 1032.

The order is affirmed.

I dissent.

When the decree of distribution containing the blanket clause became final, no letters de bonis non could lawfully issue thereafter. The possessor of any such purported letters could maintain no suit whatsoever. The moment the decree came in evidence showing a distribution of the the whole estate, that moment the plaintiff would be nonsuited.

The holder of these letters can have no standing whatever in court for any purpose. To confirm his appointment is to create a trouble maker. It is the province of the trustees to protect the trust estate. If they are dead or have become unfaithful, application for new trustees could be maintained.

This appeal, I think, is perfectly good, as it is no answer that the present appointee is the successor of prior appointees whose appointments were made without objection.

SHENK, Justice.

We concur: WASTE, C. J.; SEAWELL, J.; IRA F. THOMPSON, J.; CURTIS, J.