REEVE v. PHILLIPS (1937)

This is an appeal from a decree of settlement of first and final account and distribution in the estate of Cora E. Mitchell, who died in San Jose on December 25, 1928. The appellants are four children of Cora Mitchell by a former marriage, Zelma Reeve, Romaine O. Reeve, Vernon J. Reeve, and Mabel I. Yates, and are also devisees and legatees under her will. The respondents are Mary Anita Phillips (Mary Anita Mitchell) daughter of Cora and John W. Mitchell, individually and as executrix of the estate of John W. Mitchell, who died December 14, 1932. John W. Mitchell was appointed executor of his wife's estate and served as such until his death pending this appeal, when Vernon J. Reeve was appointed administrator.

The decree is attacked as erroneous in two respects. Under the will each of the appellants received a legacy of $5,000. The decree declares these legacies to be adeemed by payments of that amount to each of the appellants by Cora E. Mitchell just prior to her death. In addition to the contention that the evidence does not support the finding of ademption, it is urged by appellants that four parcels of land, in which they were given a remainder interest by the will, were by the decree erroneously distributed to John W. Mitchell in fee instead of for life with the remainder to the children, including the respondent.

There is before us, as the record upon appeal, a clerk's transcript, certified by the clerk alone, containing the papers constituting the judgment roll and, in addition a notice of motion to set aside the decree and grant a new trial upon the ground of the impossibility of procuring a phonographic report of the hearing on the petition for the settlement of the account and distribution which is supported by affidavit of the shorthand reporter that she took the shorthand notes at the hearing and that they were destroyed by fire on May 18, 1931.

The appellants have also filed a motion for diminution of the record and an application for leave to take additional evidence. These matters were continued by this court for consideration with the appeal upon the merits. It appears from the affidavits and the matters brought upon the motion for diminution that none of the appellants were in court on the hearing of the petition for distribution, for the reason that all were familiar with the terms of their mother's will and were willing to accept distribution in accordance therewith; that neither their stepfather, as executor, nor his attorney Jensen, who was a lifelong friend of the family, had ever given them any indication that any attempt would be made to procure distribution other than in accordance with the terms of the will; that at the hearing on the inheritance tax report, whereat all the children but Zelma Reeve were present, the $5,000 gifts were discussed and it was agreed that they were not in ademption of the legacies; that it was also agreed that the appellants should be taxed on their remainder interests in the lands claimed to be erroneously distributed to John W. Kitchell in fee; that the fact of the entry of the decree and its provisions were discovered for the first time on December 5, 1931; that the trial court thereafter made three minute orders (none of which are authenticated by either the clerk or the trial court) attempting to set aside the decree and procure a rehearing of the petition for settlement of account and distribution.

The third of these three minute orders, dated April 14, 1932, is as follows: ‘A stipulation having been entered into by E. D. Jensen and L. D. Bohnett, it is ordered that all proceedings relative to the distribution of said estate be set aside and a new petition for distribution be filed.’ It is further set forth by affidavit that thereafter conferences were had by appellants' attorney with the executor and his attorney until Mitchell's death, and that, subsequent to the appointment of Mary Anita Phillips as administratrix of her father's estate and the filing by her of a supplemental account of the deceased executor in the estate of Cora E. Mitchell on January 2, 1934, it was for the first time contended that the decree of distribution had become final and all matters subsequent to its entry were void and of no effect.

In view of the fact that the respondents have at no stage of this appeal contended there was a lack of merit in the substantive contentions of the appellants, there would appear to be considerable likelihood of a reversal if a full trial of the issues of fact were had. The policy of this court has been declared to be against the taking of additional evidence and the making of findings thereon where a reversal might be ordered. The granting of the motion for diminution of the record can avail the appellants nothing inasmuch as it is not sought to bring up thereby anything which was before the trial court at the time of the rendition of the decree appealed from. Hiett v. Inland Finance Corp., 202 Cal. 277, 259 P. 1102. The record which has been properly brought up shows no error in the rendition of the decree and it cannot therefore be reversed.

The stipulation which was the foundation of the third order was tantamount to an agreement between the parties to dismiss the appeal and authorize the trial court immediately thereafter to vacate all proceedings relative to the distribution of the estate. However, it failed of its effect because of the pendency of the present appeal (which the parties neglected to have dismissed) before this court at the time of the making of the minute order. Kinard v. Jordan, 175 Cal. 13, 164 P. 894. Exercising the supervisory power of this court for the purpose of attaining the ends of justice, we ought to carry into effect the plain intent of the parties to the stipulation and the trial court which attempted to act pursuant thereto. The dismissal of an appeal may be conditional when requisite to the reaching of a just solution of the problems of the parties. Sheegog v. Incorporated Town of Lindsay, 127 Okl. 39, 259 P. 551. We therefore dismiss the present appeal with directions to the trial court to ascertain the facts with regard to the making of such a stipulation by the parties and, if such a stipulation is found to have been made, to set aside the decree settling the first and final account and of distribution in accordance with the intention of the parties and the trial court.

If no such stipulation is found, the appellants must be left to their remedy by a separate action in equity to set aside the decree.

The motions for diminution of the record and for leave to take further evidence are denied.

PER CURIAM.