Opinion
Rehearing Denied Sept. 6, 1929
Hearing Granted by Supreme Court Oct. 3, 1929
Appeal from Superior Court, City and County of San Francisco; Frank H. Dunne, Judge.
Petition by Marie Roach, administratrix and widow of Joseph Roach, deceased, to set aside the entire estate to her, after which Joseph Francis Roach filed objections to inventory, and petitioned for the removal of the administratrix. Order overruling objections and denying petition for the removal of the administratrix, and, from an order setting aside the estate to the widow, Joseph Francis Roach appeals. Affirmed. COUNSEL
Matthew A. McCullough, of San Francisco, for appellant.
Kington & Cunningham, of San Francisco, for respondent.
OPINION
STURTEVANT, J.
Joseph Roach died intestate in the city and county of San Francisco on the 3d day of March, 1928. He left him surviving a widow and a minor daughter by that widow, and also a son, about 30 years of age, who was an offspring of a former marriage. On the 26th of March, 1928, the widow applied for letters of administration. In her petition she named the assets as including four different bank accounts in the total sum of $1,510.22; five bonds, $250; one automobile, $500. Later, letters were issued to her, and subsequently an inventory and appraisement was filed. Thereafter the widow filed a petition setting forth that the net value of the estate, after the payment of the debts, was $1,398.22, and praying for an order that the entire estate should be set aside to her. After notice duly given, the stepson, Joseph F. Roach, appeared, and filed "Objections to inventory and petition for removal of administratrix." The petition and the objections came on for hearing on the same date. The trial court overruled the objections and denied the petition for the removal of the administratrix, and thereupon granted the petition of the administratrix as prayed. From that order the stepson has appealed.
In his brief the appellant has gone outside of the record and has stated many things that do not appear in the record brought up. The respondent has done the same. We will not attempt to follow those excursions. In his pleading the appellant alleged that the administratrix had neglected to return in the inventory lot 21 in block 4 of Holly Park tract in San Francisco. He alleged it was separate property of the deceased. He also alleged that the administratrix had not returned in the inventory $9,000 drawn from the San Francisco Bank, which moneys were also alleged to be the separate property of the deceased "carried in the names of the deceased, Joseph Roach and Marie Roach." The appellant made no attempt to introduce any evidence regarding any bank account whatsoever. In offering his proof, it soon appeared from the evidence presented by the appellant that before he died the deceased executed a deed to the piece of real estate in question. In reply to the court’s question, counsel stated, "I am trying to show that the decedent, Joseph Roach, was not capable at the time he executed his deed, or did not understand whether it was a deed or a will." After considerable discussion between court and counsel, the court remarked that, if counsel considered there was anything irregular about the deed, appellant could go ahead by a proper proceeding to have the irregularity determined. On that evidence the objection was submitted. The remark made by the trial court was certainly correct as a general proposition. Simonton v. Los Angeles T. & S. Bank, 192 Cal. 651, 221 P. 368; Howard v. Howard, 67 Cal.App. 56, 226 P. 984. We do not understand the appellant to contend otherwise. However, we do understand him to take the position that, if the respondent fraudulently held out of the inventory properties of the estate of the decedent which, together with the properties which she asked to have set aside, would make an aggregate in excess of $2,500 in value, then and in that event the trial court should have stayed its hand. Conceding this contention to be sound, the record does not support the contention of the appellant. The total properties asked to be set aside, and which were actually set aside, were of the total sum of $1,398.22. The record does not disclose the value of the real estate nor the value of any other items the total of which would make the estate exceed $2,500. In his pleading the appellant alleges that the bank account of $9,000 was separate property, but that it stood in the name of the husband and wife. Bearing in mind that the pleading of the appellant is tantamount to a charge of fraud and that fraud is never presumed, we may assume that the bank account was what is known as a survivor account and therefore that there was no reason why the administratrix should have returned any part of that bank account in the inventory.
Although the record is not complete, nevertheless it appears that on the hearing of the application for letters the same questions now in dispute were presented to the trial court. After hearing those matters, the trial court ordered letters issued to the administratrix. In doing so it held in effect that a bona fide claim adverse to the estate does not disqualify one from being appointed administrator. It has been so held. In re Bauquier, 88 Cal. 302, 26 P. 178, 532. Having done so, and without any new fact appearing, the controversy as delineated would not justify the removal, at a later date, of the administratrix. It is settled law in all jurisdictions that litigation should be promptly heard and determined. When the hearing on the application for letters resulted adversely to the contention of this appellant, he should have proceeded to commence an appropriate action. This he neglected to do. At the end of six months, when the final application came on for hearing, he came forward making the same contentions. Conceding that the trial court might have postponed the hearing, or might have rendered a decree reserving any rights of this appellant, it was not bound to do so. The appellant was appealing to the discretion of the trial court. The facts contained in the record did not satisfy the mind of the trial court that the appellant was acting in good faith. We are quite unable to say that there was any abuse of discretion.
We find no error in the record. The order appealed from is affirmed.
We concur: KOFORD, P.J.; NOURSE, J.