REEVE v. PHILLIPS (1936)

This is an appeal from a decree of settlement of the first and final account and of final distribution in the above-entitled estate. There are also pending herein a motion for diminution of the record, and an application to take additional evidence.

The decree of distribution was entered by the superior court of Santa Clara county, on October 9, 1931. The appellants herein, Romaine O. Reeve, Vernon J. Reeve, and Mabel I. Yates, are children of the decedent, Cora E. Mitchell. Jonh W. Mitchell, husband of the decedent, was appointed executor of the estate. He died pending the appeal, and respondent Mary Anita Phillips, daughter of Cora E. and John W. Mitchell, was appointed administratrix of his estate, and substituted herein, by order of this court on May 20, 1936, as respondent. In the lower court appellant Vernon J. Reeve was appointed administrator with the will annexed of the estate of Cora E. Mitchell, upon the death of John W. Mitchell.

The appeal raises two main objections to the decree. The will of the decedent leaves legacies of $5,000 to each of appellants. The decree of distribution, however, declares that the decedent paid those sums to appellants prior to her death, as advancements, and that the legacies were consequently adeemed. Appellants contend that the evidence does not establish an ademption.

The second objection is that the testatrix devised to John W. Mitchell certain land for life, with remainder to the children of testatrix, including appellants; and that the decree of distribution erroneously distributed part of said land to John W. Mitchell in fee.

This appeal was presented upon the judgment roll, the record consisting merely of a clerk's transcript. Thereafter, the appellants filed a motion for diminution of the record, and an application for leave to take additional evidence. This court continued these matters for consideration together with the appeal. An examination of the briefs, affidavits, and other papers now before us, discloses a most unusual situation. Upon the entering of the decree of distribution, counsel for appellants entered the case for the first time, and gave notice of appeal and moved in the lower court to set aside the decree. But, when he sought to prepare the transcript on appeal, it was discovered that the phonographic notes of the court reporter had been destroyed by a fire which burned the Santa Clara county courthouse, on May 18, 1931. Accordingly, the only record brought up was the clerk's transcript, and hence the attempt by counsel for appellants to bring up other matters of evidence by his above-mentioned motions.

Meanwhile, the affidavits show the lower court granted the motion made therein to set aside the decree of distribution. There also appears in the minutes of the court the fact that upon stipulation by counsel for both sides, an order was made ‘that all proceedings relative to the distribution of said estate be set aside and a new petition for distribution be filed.’ But, according to the affidavits, respondent subsequently claimed that the decree had become final and contended that all proceedings thereafter were void.

It is further set forth that two quiet title suits, involving some of the lands of this estate, have been tried, with conflicting decisions, and that appeals are pending in these suits.

The appellants finally assert in their affidavits that prior to the decree, in conferences with the attorney for the estate and the inheritance tax appraiser, all parties were agreed that the $5,000 gifts were not advancements, and that the first knowledge of any contrary position which they had was from the decree of distribution itself.

This recital has been made not for the purpose of indicating what may be the merits of this appeal, but merely to show that through an unfortunate accident appellants were deprived of the opportunity to present their case on the merits, supported by an adequate record. In the meantime, further proceedings have been attempted in the lower court. In order for this court to give fair consideration to the appeal, it would be necessary to complete the record, both by the addition thereto of some material offered by appellants, and by taking evidence herein. In view of the uncertainties of the case, and the total lack of a reporter's transcript, we do not feel that this is a proper case to take evidence, particularly in view of the policy announced by this court against taking evidence and making findings in any case where a reversal might be ordered. We are accordingly of the view that the simplest and most practical method of reaching a just solution of the problems raised herein would be to reverse the orders appealed from, and set the whole matter at large before the trial court.

The decree of settlement of the first and final account and of final distribution is reversed.

The motion for diminution of the record and the application for leave to take additional evidence are denied.

Each party shall bear his own costs on this appeal.

PER CURIAM.