Colden v. Costello

26 Citing cases

  1. Estate of Stone

    170 Cal.App.2d 533 (Cal. Ct. App. 1959)   Cited 10 times

    But a surviving wife's claim to her share of the community property is said to come to her through probate (Prob. Code, § 202) so that her claim is in privity with the estate and should be litigated therein. ( In re Burdick, supra, 112 Cal. 387; Estate of Kurt, supra, 83 Cal.App.2d 681, 684; Colden v. Costello, 50 Cal.App.2d 363 [ 122 P.2d 959].)" ( Central Bank v. Superior Court, supra, 45 Cal.2d at p. 17.) In the Estate of Kurt, ( supra, 83 Cal.App.2d 681) cited in the above quotation from Central Bank v. Superior Court, the court held that the claim of community property made by the surviving husband who was not the personal representative of the estate could not be determined in a proceeding to determine heirship.

  2. Sieroty v. Silver

    58 Cal.2d 799 (Cal. 1962)   Cited 22 times

    Therefore, it was a matter in which only the superior court not sitting in probate had jurisdiction. (See Ludwicki v. Guerin, 57 Cal.2d 127, 130 [1], [2] [ 17 Cal.Rptr. 823, 367 P.2d 415]; Schlyen v. Schlyen, 43 Cal.2d 361, 374 [16] et seq. [ 273 P.2d 897]; WellsFargo Bank etc. Co. v. Superior Court, 32 Cal.2d 1, 12 [ 193 P.2d 721]; Medeiros v. Cotta, 130 Cal.App.2d 740, 746 [2] et seq. [ 279 P.2d 814]; Colden v. Costello, 50 Cal.App.2d 363, 368 [2] et seq. [ 122 P.2d 959] [hearing denied by the Supreme Court]; McCaughna v. Bilhorn, 10 Cal.App.2d 674, 684 [5] [ 52 P.2d 1025] [hearing denied by the Supreme Court].) [2a] Second.

  3. Estate of Kazian

    59 Cal.App.3d 797 (Cal. Ct. App. 1976)   Cited 20 times
    Holding that assertion of community property interest did trigger no contest clause

    However, the "characterization of that proceeding is to be determined by the allegations rather than the caption of the pleading which initiated it." ( Estate of Lewy, 39 Cal.App.3d 729, 734 [ 113 Cal.Rptr. 674]; see also Colden v. Costello, 50 Cal.App.2d 363, 367-369 [ 122 P.2d 959].) Decedent specifically declared that all property in her name was her sole and separate property — property worth, as noted, about $1,300,000.

  4. Estate of Baglione

    65 Cal.2d 192 (Cal. 1966)   Cited 65 times

    ) The connection may also arise out of the nature of the claim to the property. The superior court sitting in probate can determine the claim of a surviving wife to her share of the community property ( Estate of Burdick, 112 Cal. 387, 393-396 [44 P. 734]; Colden v. Costello, 50 Cal.App.2d 363, 369 [ 122 P.2d 959]) or adjudicate a dispute between claimants to property "conceded . . . to be or to have been acquired . . . in the course of probate proceedings." ( CentralBank v. Superior Court, supra, at p. 16; Estate of De Barry, 43 Cal.App.2d 715, 725-726 [ 111 P.2d 728].)

  5. Central Bank v. Superior Court

    45 Cal.2d 10 (Cal. 1955)   Cited 34 times
    In Central Bank v. Superior Court, supra, it was said at page 17: "But a surviving wife's claim to her share of the community property is said to come to her through probate (Prob. Code, § 202) so that her claim is in privity with the estate and should be litigated therein."

    But a surviving wife's claim to her share of the community property is said to come to her through probate (Prob. Code, § 202) so that her claim is in privity with the estate and should be litigated therein. ( In re Burdick, supra, 112 Cal. 387; Estate of Kurt, supra, 83 Cal.App.2d 681, 684; Colden v. Costello, 50 Cal.App.2d 363 [ 122 P.2d 959].) [6] In the present case there is no relationship between the bank and the estate such as would bring the bank into privity similar to that of the representative of the estate, and no reason appears why the doctrine should be broadened to include one who stands in the position of the bank.

  6. Estate of MacMillan

    43 Cal.2d 437 (Cal. 1954)   Cited 10 times

    ]" ( Estate of Marre (1941), 18 Cal.2d 184, 190 [ 114 P.2d 586].) Respondents assert generally that the administrator failed in his duties to exercise prudence and diligence (citing Estate ofRobl (1912), 163 Cal. 801, 802 [ 127 P. 55, Ann.Cas. 1914A 319]; Colden v. Costello (1942), 50 Cal.App.2d 363, 372 [ 122 P.2d 959]) and to prosecute actions necessary for the protection of the property of the estate (citing Landis v. First NationalBank (1937), 20 Cal.App.2d 198, 207 [ 66 P.2d 730]). But such general propositions of law do not answer the administrator's contention that there is no evidence to support the finding that "by reason of the administrator's failure resulting from his negligence to require said trustee to distribute to the Estate its share of the net earnings of said trust as dividends, and as a result of the declaration and payment of a grossly disproportionate dividend to said Estate on December 13, 1951, in the sum of $44,769.

  7. Estate of Roberts

    27 Cal.2d 70 (Cal. 1945)   Cited 37 times

    Section 1082 of the Probate Code provides that a decree in such a proceeding, if final, "shall be conclusive . . . during the remainder of the administration of the estate and upon any subsequent proceeding for distribution." (See Estate of Horman, 167 Cal. 473, 475 [ 140 P. 11]; Colden v. Costello, 50 Cal.App.2d 363, 371 [ 122 P.2d 959].) [3] The court's jurisdiction in a proceeding to determine heirship includes the power to adjudicate community property rights.

  8. Willson v. Security-First National Bank

    21 Cal.2d 705 (Cal. 1943)   Cited 50 times
    In Willson v. Security-First Nat. Bk., 21 Cal.2d 705, 712 [ 134 P.2d 800], the court said: "It is true that the court sitting in probate, although determining the extent of the individual liability of the trustee, may not render a personal money judgment against him upon which execution may be had. (Estate of McLellan, 8 Cal.2d 49 [ 63 P.2d 1120]; Costa v. Superior Court, 137 Cal. 79 [ 69 P. 840]; Estate of Rey, 31 Cal.App.2d 648 [ 88 P.2d 718].)

    No useful purpose would be served in discussing plaintiff's right to bring an action in equity had the trustee not accounted to the probate court, or to consider whether the jurisdiction conferred on the court sitting in probate by section 1120, Probate Code, supra, is exclusive, or is concurrent with the exercise of jurisdiction sitting in equity. (As bearing on this question see: Dowdall v. Superior Court, 183 Cal. 348 [ 191 P. 685]; King v. Chase, 159 Cal. 420 [ 115 P. 207]; Estate ofMcLennan, 29 Cal.App.2d 666 [ 85 P.2d 499]; Turney v. Shattuck, 96 Cal.App. 590 [ 274 P. 442]; Barber v. SuperiorCourt, 43 Cal.App. 221 [ 184 P. 952]; Colden v. Costello, 50 Cal.App.2d 363 [ 122 P.2d 959]; Howard v. Bennett, 53 Cal.App.2d 546 [ 127 P.2d 1012].) Assuming that an accounting could be sought in equity as well as in probate, the present action is not for a general accounting, but seeks relief as to a single transaction.

  9. Estate of Plum

    255 Cal.App.2d 357 (Cal. Ct. App. 1967)   Cited 6 times

    ) The connection may also arise out of the nature of the claim to the property. The superior court sitting in probate can determine the claim of a surviving wife to her share of the community property ( Estate of Burdick, 112 Cal. 387, 393-396 [44 P. 734]; Colden v. Costello, 50 Cal.App.2d 363, 369 [ 122 P.2d 959]) or adjudicate a dispute between claimants to property `conceded . . . to be or to have been acquired . . . in the course of probate proceedings.' ( Central Bank v. Superior Court, supra, at p. 16; Estate of De Barry, 43 Cal.App.2d 715, 725-726 [ 111 P.2d 728].)

  10. Estate of Miller

    230 Cal.App.2d 888 (Cal. Ct. App. 1964)   Cited 34 times
    Holding that "[i]t is obvious that the discretion given to a trustee is never unlimited or arbitrary, such as might be exercised by an oriental prince out of the Arabian Nights, sitting at the city gate and exercising his own uncontrolled whim as to what is appropriate and just"

    The courts of this state have held in a variety of cases that there is no forfeiture. For example, a claim to property in the estate made on the ground that it is community property and, therefore, distributable to the surviving spouse rather than under the will is not as rather recently said a forfeiture "contest" ( Estate of Dow, supra, 149 Cal.App.2d 47, 50-56; Colden v. Costello, 50 Cal.App.2d 363 [ 122 P.2d 959]); nor is there a "contest" when there is an attempt to enforce a claim for money ( Estate of Dow, supra; Estate of Madansky, 29 Cal.App.2d 685 [ 85 P.2d 576]); furthermore, when there is an attempt to secure specific property which is apparently in the estate it is not a contest ( Liggett v. Liggett, 341 Mo. 213, 220, 222 [ 108 S.W.2d 129, 132-133]) even though the claim is based upon an alleged source of right independent of the will; a motion for dismissal of a probate proceeding on the ground of lack of jurisdiction is not a contest ( Estate of Crisler, supra, 97 Cal.App.2d 198); nor is opposition to distribution which would result in changing the recipient of estate property ( Estate of Price, 56 Cal.App.2d 335 [ 132 P.2d 485]). As remarked in Estate of Scott, 217 Cal.App.2d 111, 116 [ 31 Cal.Rptr. 438]: "Here the probate court decided that the petition of the executrix asking that the charitable legacies be reduced under section 41 was not a contest within the m