Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Debra Kazanjian, Judge, No. 07CEPR00027
Baker, Manock & Jensen, Jeffrey A. Jaech and Mark S. Poochigian, for Petitioner and Appellant.
Dowling, Aaron & Keeler, William J. Keeler, Jr., and Leigh W. Burnside, for Objector and Respondent.
OPINION
Ardaiz, P.J.
Appellant Louis Brosi, Jr., is the son of Stella E. Brosi, who died on October 29, 2005. Appellant petitioned the court for probate of Stella's will and for letters testamentary. Another heir objected to the appointment of appellant as executor. After a hearing on the objection, the court refused to appoint appellant as executor and instead appointed the Public Administrator to be the personal representative of the estate. Appellant appeals from the court's orders appointing the Public Administrator as administrator with will annexed.
APPELLANT'S CONTENTION
Appellant contends that the court erred in refusing to appoint him as executor of his mother's estate. He further contends that if a valid ground existed for not appointing him executor, the court should have appointed his sister Doris as executor, and should not have appointed the Public Administrator to administer the estate. As we shall explain, we find no abuse of discretion. We will affirm the order.
FACTS
Louis Brosi, Sr., and Stella Brosi had three children: Louis, Jr. (appellant), Doris and Barbara. Stella Brosi made a will in 1978. Her husband, Louis, Sr., passed away in 1979. Daughter Barbara passed away several years later. Barbara's daughter is Cindy Snow. Snow was the objector to appellant's petition and is the respondent on this appeal.
The proper disposition of Stella's property under her will is not an issue on this appeal. Without addressing or deciding any such issue, we nevertheless note that the provisions of Stella's will appear to call for equal bequests to each of her three children, with the children of any deceased child to take the deceased child's share. Cindy Snow, as a child of Stella's deceased daughter Barbara, thus appears to be a beneficiary under the will. Stella's will nominated her husband as executor, and further provided "[i]n the event that LOUIS BROSI, SR. is ... unable or unwilling to serve as such Executor, I nominate and appoint LOUIS BROSI, JR., in his place and stead ...."
Appellant's petition for probate of will and for letters testamentary was filed in January of 2007, about 15 months after Stella's death. Cindy Snow's objection to the appointment of appellant as executor alleged that appellant had long neglected the estate. Snow also alleged that appellant had failed to act impartially with respect to all beneficiaries in that appellant had allowed his son Thomas to operate a business on the estate's real property without collecting rent from Thomas. Snow further alleged that appellant failed to respond to Snow's requests for information about the status of the estate and never provided Snow with an accounting of the estate's assets and debts.
Appellant and his sister Doris testified at the hearing on the petition. After hearing the evidence, the court found no unreasonable delay by appellant in filing the petition for probate. That finding is not challenged by anyone on this appeal. The court then stated: "The other issue raised was whether or not there was any kind of waste or mismanagement, wrongful neglect of the estate, any reasons under the [P]robate [C]ode to -- that would be present to remove someone from administering an estate or prevent them from being appointed." The court then gave a summary of the evidence the court had heard on that issue, and then appointed the Public Administrator as administrator of the estate. We will describe that evidence in our analysis below of our conclusion that the court did not abuse its discretion in appointing the Public Administrator.
APPOINTMENT OF AN EXECUTOR
Probate Code section 8420 provides: "The person named as executor in the decedent's will has the right to appointment as personal executive." The Law Revision Commission Comment to this 1990 enactment states: "This section is an express statement of the concept that the named executor has first priority for appointment as personal representative. The section does not apply if the person named is not qualified for appointment under Section 8402 (qualifications) or has waived the right to appointment." (Cal. Law Revision Com. com., 53A West's Ann. Prob. Code (1991 ed.) foll. §8420, p. 207.) Section 8402 lists several circumstances in which a person "is not competent to act as personal representative." (§ 8402, subd. (a).) Most of them are not pertinent to the case presently before us. The pertinent circumstance is the one appearing at subdivision (a)(3) of section 8402: "There are grounds for removal of the person from office under Section 8502." Section 8502 states:
All further statutory references are to the Probate Code unless otherwise stated.
"A personal representative may be removed from office for any of the following causes:
"(a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.
"(b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.
"(c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.
"(d) Removal is otherwise necessary for protection of the estate or interested persons.
"(e) Any other cause provided by statute."
Snow's trial brief cited subdivisions (a), (c) and (d) of section 8502, supra. The probate court's comments make clear that it rejected Snow's arguments of delay in filing the petition (see also § 8001) and purported neglect of the estate (§ 8502, subd. (c)). The court expressly stated "the Court finds that there was no unreasonable delay in finding [sic] the petition for probate." The court's comments also make it sufficiently clear to us, however, that the court found the actions taken by appellant after his mother's death to be mismanagement of the estate. (§ 8502, subd. (a).) When the court announced its decision, the court summarized the evidence presented to it at the hearing. We will address that evidence shortly. First, however, we note that the court expressly stated: "[T]he court is acutely aware of the fact that hindsight is always 2020. The Court doesn't believe anything that Mr. Brosi did was meant to defraud anyone and yet the Court must look how things have been managed so far in determining whether or not there is a reason to appoint him or not appoint him or appointed [sic] someone else to handle the affairs of this estate." The court also stated: "[B]ased on all of the testimony that the Court has heard and based on all of the foregoing, the Court finds that, um, it is not in the best interest of the estate for the petitioner, Mr. Brosi, to serve as the executor of the estate, although he has been named. The Court finds that the things he has done have been -- with regard to the trust and the estate, which is connected, um, in a way in terms of the joint ownership of the property, um, and I do not think he did any of this on purpose or to take money away from anyone, but it was not a prudent, um, exercise of his duties. And there is a pattern involved of making decisions without notifying other individuals, not looking -- not placing money in an interest bearing account when received. All of which I think are -- were innocently done but which nevertheless tell the Court that, um, he should not be appointed ...."
The meaning of the term "mismanagement" was explained in Estate of Palm (1945) 68 Cal.App.2d 204, as follows: "Mismanagement of an estate which may authorize the revocation of letters ... does not necessarily mean that the executor or administrator shall be guilty of fraud or of willful or deliberate acts detrimental to the estate. The term 'mismanage' has been construed to mean merely that the business of the estate has been badly, improperly or unskillfully conducted. [Citation.]" (Id. at p. 210.)
A.
Appellant points to the court's statement saying "the Court finds that ... it is not in the best interest of the estate for the petitioner, Mr. Brosi, to serve as the executor," and argues that the court applied the wrong standard in determining whether to appoint appellant as executor. "It is the universal rule that a testator may name the person who shall be the executor of his will, and such person has a right to act in the absence of specific statutory disqualification." (In re Buchman's Estate (1954) 123 Cal.App.2d 546, 554.) Appellant correctly points out that the probate court's task is not to appoint the person the court feels would be the "best" executor, but rather to appoint the person named by the testator unless there is a specific statutory disqualification. We do not agree with appellant, however, that the court did not find a specific statutory disqualification to be applicable. The court expressly found that appellant's management of the estate "was not a prudent ... exercise of his duties." "Prudent" means "capable of exercising sound judgment in practical matters, esp. as concerns one's own interests." (Webster's New World Dict. (2d college ed. 1982), p. 1145.) We think it is clear that the court's use of the term "not ... prudent" was intended to be diplomatic and to avoid the harshness of stating to petitioner that he had "mismanaged" his mother's estate within the meaning of section 8502, subdivision (a). Although the court might have chosen another way to do this and to still be clear about its finding, such as by saying "the evidence showed subdivision (a) of §8502 to be applicable," we are not of the view that the court's chosen manner of announcing its finding was error.
Even if we were to view the court's manner of announcing its decision as an erroneous failure to identify adequately a statutory basis for its decision, we would find that error to be harmless. Were we to remand the matter to the probate court to more specifically identify the statutory basis for its decision, we see no reasonable probability that the court would find none and would appoint appellant as executor. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-801; Elsner v. Uveges (2004) 34 Cal.4th 915, 939; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; Kinsman v. Unocal (2005) 37 Cal.4th 659, 682.
B.
Appellant next contends that (1) "the Objector alleged the presence of only one of the five grounds listed" in section 8502 for removal of a personal representative, (2) this sole ground was the subdivision (c) ground ("[t]he personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative"), and (3) the court made no finding of any such neglect and there is no evidence that would support any such finding. The flaw in this argument is its first prong. Snow's objection was not limited to the ground stated in subdivision (c) of section 8502. Her written objection to the petition cited section 8502 and did not limit itself to any subsection of that statute. The objection also expressly mentioned various actions allegedly taken by appellant in his management of the property which Snow deemed to be improper. Snow's trial brief expressly cited subdivisions (a), (c) and (d) of section 8502, and included verbatim the definition of "mismanagement" found in Estate of Palm, supra, and quoted above in this opinion.
C.
Appellant next contends that the probate court could not refuse to appoint him as executor because there is no statutory authority allowing a court to refuse to appoint an executor on the ground of mismanagement. In appellant's words, "one who has no authority to act on behalf of the estate can hardly be said to have 'wasted' or 'mismanaged' the estate because he has no right to manage the estate in the first place." This argument appears to us to ignore the language of section 8402, subdivision (a)(3), and the Law Revision Commission's own explanation of the purpose of the language it chose to use in drafting section 8402, subdivision (a)(3).
Section 8402 states in pertinent part: "(a) Notwithstanding any other provision of this chapter, a person is not competent to act as personal representative in any of the following circumstances: [¶] ... (3) There are grounds for removal of the person from office under Section 8502." Appellant's argument appears to be that there can never be "grounds for removal of the person from office under Section 8502" (§ 8402, subd. (a)(3)) if the person has not already been appointed to the office of personal representative. Such a construction of subdivision (a)(3) of section 8402 would appear to render that subdivision meaningless surplus verbiage because a person who already has been appointed personal representative may be removed from that office under section 8502 itself for any of the grounds (or "causes" (§ 8502)) listed in section 8502. "'If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.' [Citation]; 'a construction making some words surplusage is to be avoided.' [Citation.]" (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230; in accord, see also People v. Isaia (1989) 206 Cal.App.3d 1558, 1563-1564.) Furthermore, when we construe a statute "[w]e begin with the fundamental rule that a court 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.]" (Moyer, supra, 10 Cal.3d at p. 230.) The Law Revision Commission Comment to section 8402 states: "Paragraph (3) of subdivision (a) enables the court to deny appointment of a personal representative if the personal representative would be subject to removal ...." "Explanatory comments by a law revision commission are persuasive evidence of the intent of the Legislature in subsequently enacting its recommendations into law." (Brian W. v. Superior Court (1978) 20 Cal.3d 618, 623; in accord, see also People v. Garfield (1985) 40 Cal.3d 192, 199.) We see no indication of any contrary intent. The "grounds" described in section 8402, subdivision (a)(3) as "grounds for removal of the person from office under Section 8502" can exist even when removal itself cannot occur.
D.
Appellant next contends that the evidence presented at the hearing was insufficient to support a denial of his petition for appointment as executor. We disagree. "The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge reasonably could have reached the challenged result. [Citation.]" (Estate of Billings (1991) 228 Cal.App.3d 426, 430; in accord, see also Estate of Hammer (1993) 19 Cal.App.4th 1621, 1634.) We can find no such abuse here.
The evidence was essentially undisputed. The major asset of the estate was a parcel of land approximately 17 acres in area. It had been owned by Louis, Sr., and Stella. When Louis, Sr., passed away in 1979, his half interest in the property was placed into a trust, with appellant and Stella as trustees of that trust. Louis, Sr.'s will stated in part: "The trust shall terminate on the death of STELLA BROSI. The trustees shall thereupon divide the trust estate, income and principal, into equal shares, one share for each child of LOUIS BROSI, SR., then living and one share for each child of LOUIS BROSI, SR., not living but who has then living issue." There would be three equal shares: one for appellant, one for his sister Doris, and one for the children of appellant's deceased sister Barbara. One of the children of appellant's deceased sister Barbara is respondent Cindy Snow. As we have already mentioned, Stella's will appears to call for her half interest in the property to be distributed in the same three equal shares. When Stella passed away in October of 2005, Louis, Sr.'s trust terminated, and his half interest in the 17 acres was to be divided into three equal shares. Similarly, under Stella's will, Stella's half interest in those 17 acres was to be divided into three equal shares.
Instead, appellant negotiated a rental agreement with his son, Thomas Brosi, under which Thomas would pay appellant $1,000 per month for use of the entire 17 acres for Thomas's nursery business. Thomas began paying the $1,000 per month rent in January of 2006. Appellant took the money paid by Thomas and placed it "in the safe" and not in any interest-bearing account. At some unspecified time thereafter, appellant ceased collecting rent from Thomas. In December of 2006 appellant received a letter from Snow inquiring about Stella's estate, but he did not respond to it. Then in June or July of 2007 appellant, acting as trustee under his father's testamentary trust, sold the trust interest in the 17 acres to his two sons Louis and Thomas Brosi. An appraiser told him an entire interest in the 17 acres would be worth more than the half interest held by the trust, but appellant nevertheless sold the trust's half interest to his sons for $106,000 per acre. At the close of escrow appellant received approximately $900,000 on this sale. Appellant testified that about $500,000 of this money went to him and his sister Doris as reimbursement for expenses they had incurred in caring for their mother during her last years, from about 1998 to the time of her death in 2005. He relied on Doris's accounting of how much he should get and how much Doris should get, but their reimbursement amounts were "close to even." He did all of this without informing his deceased sister's (Barbara's) children (respondent Cyndi Snow and Cyndi's brother Bobby Snow) of his actions.
Doris testified that the proceeds of the sale to her nephews were still in the bank and that she had not yet actually received a check for reimbursement for the money she spent on care and caregivers for her mother in her mother's last years.
This evidence was more than sufficient to support a conclusion that appellant had undertaken to manage the estate, and had mismanaged it to the detriment of the heirs to his deceased sister's third of Stella's estate.
E.
Finally, appellant contends that if the court did not err in refusing to appoint appellant as executor, it erred in refusing to appoint appellant's sister Doris as executor because Doris, as Stella's other surviving child, was highest in order of priority under Probate Code section 8461. We disagree. When Doris was asked if she would be able to sue her brother if that were necessary in order to protect the interests of her mother's estate, she said "I don't know about suing" and "[i]f I couldn't get the money back it would create a problem." This was ample evidence that appointment of someone other than Doris was "necessary for the protection of the estate or interested persons" (§8502, subd. (d)), particularly Cindy Snow and Bobby Snow. The probate court expressly commented on this testimony by Doris in announcing its decision to refuse to appoint her.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Wiseman, J., Hill, J.