Opinion
Hearing Granted by Supreme Court May 8, 1933.
Appeal from Superior Court, Los Angeles County; Albert Lee Stephens, Judge.
Account and petition for discharge by Chester R. Smead, executor of the estate of Lillian C. Smead, deceased, in which Della F. Coates and others filed objections. From an order refusing to settle the executor’s account and requiring accounting for certain real property, the executor appeals.
Affirmed.
See, also, 215 Cal. 439, 10 P.2d 462.
COUNSEL
Richard Hartley and Freston & Files, all of Los Angeles, for appellant.
M. C. Spicer, of Los Angeles, for respondents.
OPINION
YORK, Justice.
The decedent executed an holographic will under date of March 10, 1920, bequeathing certain specified sums of money totaling $35,000 to her aunts and cousins, making her husband, the appellant here, the residuary legatee, and also naming him executor of her said last will. Appellant, the said husband, was appointed executor on July 9, 1930, and ever since that time has been and now is the duly appointed, qualified and acting executor of said estate. On September 23, 1930, said executor filed his first and final account and his petition for discharge, setting forth therein that the deceased had left no property of any kind, whereupon the legatees and their successors in interest filed their objections to the settlement of the account, also petitioned the court for the removal of the executor, and alleged that said executor had property in his possession belonging to the said estate which he was concealing. The case was tried upon the issues raised by the objections to the final account, and this is an appeal from the order of the court refusing to settle the account of said executor, and ordering him to account to the estate for two pieces of real property of great value.
The two parcels of property referred to consisted of one piece of fifty acres and another of one hundred thirty-seven acres. The smaller piece had been sold for cash and the larger piece had been sold also, but the method used was to convey the same to a trust company as trustee under what is commonly known as a subdivision trust. The decedent had been originally set up in the trust as the sole beneficiary, but later had assigned her interest therein to her husband, the said executor, to whom most of the money was paid. The money received from the two parcels amounted approximately to a quarter of a million dollars, and the action here actually resolves itself into an effort to secure the sum of $35,000 for the benefit of the objectors, inasmuch as the balance of the property would revert to the husband executor in any event.
The two parcels of land herein referred to were received by the decedent from her uncle, one John J. Charnock, who was a very elderly man. The decedent at the time of the conveyance was married to appellant, but the deed ran to her as "Lillian Charnock Price," and the objectors maintained that Mr. Charnock at the time he conveyed the property to his niece did not know that she was married to appellant, and that, therefore, such deeds represented gifts and as such constituted the sole and separate property of the decedent. They further contended that at the time the decedent conveyed the beneficial interest in the trust to her husband, appellant, she was incompetent, and that the conveyance was invalid and should be set aside, or that in any event the conveyance did not show that it was made for a valuable consideration or was intended as a gift, and that the property continued to exist as the sole and separate property of the decedent, and that the executor appellant was accountable to the estate for the money received from the trust as a debt owing from him to the decedent.
Appellant maintains that the real property in question was deeded to decedent as community property, and, instead of being a gift, was deeded by way of payment for services rendered to the uncle during his lifetime and for the promise of decedent and appellant to continue to render such services to the uncle. Appellant further contends that the fact that the deeds ran to decedent by her maiden name was done because of the uncle’s eccentricity, i. e., that he was opposed to marriage in general and of any of his relatives in particular. Appellant contends that he and decedent concealed the fact of their marriage from the uncle for some time, but after the uncle became acquainted with appellant and came to like and trust him, he withdrew any objections to the marriage of appellant and decedent, and their true status was then disclosed to him, but he desired to conceal from the rest of the family that he had yielded in this one instance, and, in order to avoid disclosing the fact that he had approved of the marriage of appellant and decedent, the deeds were made to decedent under her maiden name.
The main issue upon this appeal is whether the property constituted the community property of decedent and appellant, or formed part of the separate estate of decedent. Appellant contends that findings IV and V were not justified by the facts and were erroneous as a matter of law.
Finding IV: "The court further finds that the transfers of the two pieces of real property above described from John J. Charnock to Lillian Charnock Price were conveyances to her alone from her uncle, and that no service of Chester R. Smead or of Lillian Charnock Price Smead, after her marriage with Chester R. Smead, formed any part of the consideration for such conveyances, and that the said described property became the sole and separate property of Lillian Charnock Price (Smead)."
Finding V: "The court further finds that the piece of property described as Sub-division of tract of land No. 3 of the allotment of Machado containing 50.18 acres was sold for $1000.00 per acre, and that the Ro La Ballona Tract containing 137.52 acres was sold for $1750.00 per acre; that in the sale of the Ro La Ballona tract a trust was created, the Title Guarantee and Trust Company being the trustee and Lillian Charnock Price Smead the beneficiary under the trust."
There was a decided conflict in the evidence relating to the facts covered by these two findings, and, where the trial court determines an issue in favor of either party upon conflicting or contradictory evidence, such determination will not be disturbed upon appeal.
The exclusion of evidence of the prior action, Hunt, Treasurer, v. Price, did not constitute such error as would result in prejudice to the appellant.
The order appealed from is affirmed.
CONREY, Presiding Justice (concurring).
I concur in the judgment. But it appears to me that some further comment should be made upon the ruling of the court excluding the evidence offered by appellant in support of his claim that respondents were estopped by the answer made by decedent to the complaint in the inheritance tax case which was prosecuted against her, entitled Hunt, Treasurer, etc., v. Price. The verified answer of appellant to the petition filed by respondents in this proceeding in the court below alleges that subsequent to the acquisition of said property (that is subsequent to the conveyance made by Charnock to Mrs. Smead as Lillian Charnock Price), in an action on behalf of the state to recover an inheritance tax accruing by reason of said transfer, claim was made by the state that said property was subject to an inheritance tax by reason of its testamentary nature, and by reason of the fact that it was a gift; that said claim of the state was litigated, and it was judicially determined that said conveyance was for a valid and sufficient consideration, and that said property was not subject to an inheritance tax. Appellant also contends in his answer by appropriate allegations that, in fact, the property was community property.
At the trial of this present case appellant first offered in evidence the decree in the Hunt Case, as a decree showing that the property was given for a valid consideration and for services rendered and agreed to be rendered, etc. Respondents objected that they were not bound by the decree, as the Hunt Case was an action solely between the plaintiff there and Mrs. Smead. The court, at that time, reserved its ruling. Thereafter the matter was again brought up and the court sustained the objections. The offer, in its definite form as made by appellant at the time of the final ruling, is as follows: "There is one further thing which was an oversight, Your Honor. The judgment roll, the judgment decree in the case of Hunt v. Price, that was offered during the time when the objectors were putting on their case. Now, we have proceeded on the case in defense and we would like to offer that judgment again as a part of the evidence for the defense on the ground of estoppel on the part of the objectors to raise--as evidentiary, at least, of estoppel to the objections that are being made by the objectors in this case." To which the attorney for respondents replied: "That is objected to on the grounds that it is incompetent to show any estoppel, for the reason that Chester R. Smead was not a party to the record, and for the further reason that the only thing that was decided by the court in that case was whether or not Lillian Charnock Smead should pay an inheritance tax." Appellant now claims that the court erred in its ruling sustaining the objection to this evidence.
It is not claimed that the judgment in Hunt v. Price is in itself a binding determination of the issues in this case; in other words, it is not res adjudicata with reference to this proceeding. Nor do I think that the answer to appellant herein was good as a plea of estoppel. It may be admitted that respondents, to the extent of their interest in the estate of Mrs. Smead, are bound as she would have been bound by her statements in the former case. But, on the other hand, appellant is not a person in whose favor such estoppel could be enforced. In the offered evidence there is nothing tending to prove that, in consequence of the defense made by Mrs. Smead as against the inheritance tax case, her husband, the appellant here, was led to so conduct himself that, if the truth were established, he would be damaged, or that it would work an injustice or injury to him to permit the present contentions of the respondents to prevail.
Finally, it is contended by appellant that the offered evidence was admissible as a declaration against interest, made by decedent and tending to prove that the property in question was community property. This contention rests upon the fact that said evidence, if received, would have shown that Mrs. Smead, by her verified answer, asserted that the property had been conveyed to her for a valuable consideration. Rep. Trans. p. 208. But Mrs. Smead, of course, was not a witness in this present case. Therefore her former declaration cannot be admissible for any purposes of impeachment. And to allow its use as evidence on the merits would in effect be using it as an estoppel, which, as I have said, I do not think is a defense available to appellant. Moreover, the offer was limited to the judgment roll, and was made for no other stated purpose than to establish the claimed estoppel. It was solely with that question in view that the trial court made its ruling. I agree that the judgment should be affirmed.
HOUSER, Justice (dissenting).
I dissent. Founded upon the facts as disclosed by the record herein, my conclusion is that the evidence relating to the question to which Mr. Presiding Justice CONREY has referred was properly admissible, and that, in the circumstances, the refusal by the trial court to admit such evidence prejudiced the appellant in his substantial rights in the premises and constituted reversible error.
The ultimate question of fact that was submitted to the trial court for its determination was whether certain property of the estate of Lillian C. Smead, deceased, represented her separate property in her lifetime, or whether it was community property of said Lillian C. Smead and her husband, the appellant herein. It is clear that the respondents’ rights in the premises, if any, depended wholly upon the rights in the property theretofore possessed by Lillian C. Smead. Necessarily, since in effect the respondents deraign whatever title or right they may possess through, under or by virtue of the title or right theretofore possessed by Lillian C. Smead, the right or title of the respondents could be no greater nor present more strength in their favor than was possessed by their predecessor in interest. Whatever weakness existed in the title of Lillian C. Smead to the property as her separate estate descended directly and was chargeable to any person, including the respondents, who claimed under Lillian C. Smead. Her title was their title. By no act of respondents could they either add to or subtract from the title of Lillian C. Smead; but in her lifetime Lillian C. Smead might have done many different things, or made many sundry admissions of fact against her interest, relative to the source or the strength of the title which she asserted, which, in a proper action at law or a suit in equity, would have been admissible in evidence. For example, if during the lifetime of Lillian C. Smead her husband had brought an action against her for the purpose of having adjudicated whether the property here in question was a part of the community property of the parties to the action, perhaps it would not be doubted that any declaration theretofore made by the wife against her interest would have been admissible in evidence, and consequently that the allegation of Lillian C. Smead contained in the former action to which reference has been had in the opinion of Mr. Presiding Justice CONREY, to the effect that the property in question was deeded to Lillian C. Smead "for a valuable and valued consideration," properly would have been received in evidence as tending to establish the nature of the tenure. Likewise, included within the testimony given by Lillian C. Smead in that action wherein, in substance, she declared that the agreed consideration paid by her for the property consisted in her "attention and care to and of the grantor and of his pets and animals * * * as long as he lived." To my mind, it is clear that, to the extent that in her lifetime the conduct, or acts, or the declarations, of Lillian C. Smead against her interest were admissible in evidence in any action in which her interest in property in which she claimed an ownership was an issue, the respondents are bound; not that in the ordinary sense the respondents necessarily are estopped, but that the evidence of such conduct, acts, or declarations at least is admissible as an item or items of fact which tend to establish the nature or character of ownership of the property in question. And again, without meaning to appear too certain of the correctness of my view of the legal situation here under consideration, nevertheless I am convinced that the authorities so indicate.
Section 1853 of the Code of Civil Procedure is as follows: "The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest."
And, as far as is here material, the substance of subdivision 4 of section 1870 of the Code of Civil Procedure is that "evidence may be given upon a trial of * * * the act or declaration of a deceased person done or made against his interest in respect to his real property. * * *"
With reference to some of the authorities which in effect establish the admissibility of the evidence which was rejected by the trial court, and of which action appellant herein complains, in the case of Donnelly v. Rees, 141 Cal. 56, 74 P. 433, 434, which was an action brought by a daughter of a deceased person against his grantee of real property to set aside a deed made by the grantor on the ground that the said deed was fraudulently obtained, it was held that an affidavit made by the deceased in his lifetime in an attachment action filed against him, wherein in such affidavit the deceased declared that the deed which was under attack in the cited case was not sham nor made without valuable consideration, was admissible in evidence. It should also be noted that, in the suit in which such evidence was adjudged to have been admissible, neither of the litigants then before the court was a party to or in any wise concerned in the attachment action. In connection with the admissibility of the evidence, the Supreme Court of this state remarked: "* * * The same observation is true of Kean’s own declaration, made in an affidavit in the Monaghan case, to the effect that the deed was not sham, or without consideration, or in fraud of creditors. This was admissible in evidence (Code Civ. Proc. § 1853), and, if the facts had been doubtful, would have been cogent in its effect, but it was not conclusive on the court. * * *"
The syllabus in the case of Stoddard v. Newhall, 1 Cal.App. 111, 81 P. 666, is as follows: "In an action by an administratrix to recover tools in possession of the decedent as the property of his estate, where the defendant was the mother of the decedent and testified that the tools belonged to her, that her son was employed as foreman in her orchard and kept the tools at his house as matter of convenience, it was error to exclude evidence of the declarations of the deceased against his interest in support of the defendant’s testimony. The declarations were admissible against the plaintiff, who, in her capacity as administratrix, is successor in interest of the deceased, within the meaning of section 1853 of the Code of Civil Procedure."
The case of Broaddus v. James, 13 Cal.App. 464, 110 P. 158, was an action to set aside a deed made by an aged widow to her surviving daughter to the exclusion of children of a deceased daughter. As far as concerns the question here under consideration, the syllabus of that case sufficiently states the rule announced by the court, as follows: "The declaration of the testator showing the value of the services rendered to her by her daughter, and that she deserved the whole of the property which she proposed to deed to her, would undoubtedly be admissible against her if she were alive and contesting the deed, and they were equally admissible against her representatives, and in favor of the representatives of the deceased grantee, as being the best evidence obtainable on the question of consideration. Its weight was for the trial court."
In Estate of Hill, 167 Cal. 59, 138 P. 690, which was a proceeding between the heirs of a husband and those of a wife to determine heirship to his estate, and in which proceeding a question was involved identical with that here under consideration, to wit, whether the property was separate or community, it was held:
"Sworn statements by the wife in her inventory of her husband’s estate, and in her application for a homestead, that the property was his separate estate are evidence against her successors in interest.
"Where a widow petitions to have a portion of the estate of her deceased husband set apart to her as a homestead, alleging the property to be his separate estate, the decree setting aside the homestead as prayed is binding upon her and her heirs, and estops them from asserting that the property belonged to the community (Department opinion)."
In commenting upon the admissibility and the effect of evidence such as was offered to, but rejected by the trial court herein, in part the Supreme Court said: "But we have, in addition, the sworn statement of the widow, in her application for a homestead, that the property was the separate property of Stephen Hill. There can be no question of the admissibility of this statement as a declaration against interest, operative against the appellants as successors to the right of the declarant. [Citing authorities.] Upon the same ground the widow’s sworn statement, in the inventory filed by her, that the property was the separate estate of the decedent, was evidence against her successors in interest. On the question of the admissibility of these declarations the case is precisely the same as In re Bauer [79 Cal. 304 , 21 P. 759], supra. And we think that, under the circumstances appearing here, the statements of the widow were entitled to considerable weight. They were formal averments, in proceedings deliberately taken by her. In each instance the declaration made was directly and materially antagonistic to her own interest. It related to a matter concerning which she in all probability had more accurate knowledge than any other living person. Certainly this twice-repeated solemn assertion was sufficient, in connection with the other facts shown, to justify the court in finding that the property was the separate estate of Stephen Hill."
And again, in the course of the department opinion written by Mr. Justice Henshaw, the following language occurs:
"This decree so setting aside the homestead was not only a judgment in rem binding upon all parties [citing authorities], but it was a decree invited by Isabella Hill, and therefore in an especial sense binding upon her, her heirs and her privies. She was not merely bound, as was all the world bound, because it was a proceeding in rem, she was bound because she had solicited and demanded a right from the estate of her husband based upon her declaration as to the character of the land. Having invited this judgment and having accepted the fruit of it, it needs no authority to show that she is bound by it. Indeed, during her lifetime she never questioned it. It will not do to argue that the character of the property as separate or community property was not involved in the homestead proceeding and decree. It was not only directly involved, but the court could not with propriety have entered the decree which it made excepting under the determination which it also made, that the property was the separate property of Stephen Hill. ‘In all the cases,’ says Greenleaf (1 Greenl. Ev. § 543), ‘the same principle prevails, and the judgment, acting in rem, shall be held conclusive upon the title and transfer and disposition of the property itself, * * * by whomsoever the latter may be questioned; and whether it be directly or indirectly brought in question.’ [Citing authority.]
" ‘It results then that the findings show that the question of the character of this property has been adjudicated and that this adjudication raises an estoppel against the pretensions of the heirs of Isabella Hill.’ "
From a reading of the cited case it would appear that, not only was the questioned evidence in the instant case admissible, but that the judgment contained within the judgment roll which constituted a part of such evidence amounted to an estoppel, as far as the respondents herein were concerned.
Without further quotation from the adjudicated cases of this state, it is confidently asserted that in each of the following cases may be found an announcement of a rule which in principle cannot be distinguished from that so positively stated in the cases to which reference herein has been had, to wit, Steinberger v. Young, 175 Cal. 81, 165 P. 432; Rulofson v. Billings, 140 Cal. 452, 74 P. 35; Harp v. Harp, 136 Cal. 421, 69 P. 28; 10 Cal.Jur. 1098; Horton v. Winbigler, 175 Cal. 149, 165 P. 423; Harris v. Harris, 67 Cal. 455, 8 P. 8; Bias v. Reed, 169 Cal. 33, 42, 43, 145 P. 516.
Now, as to the effect of the rejection of the offered evidence: It is beyond dispute, in fact, in effect it is conceded, that on the trial of the action a decision in favor of either party thereto would find sufficient and substantial support in the evidence. Further than that, a consideration of the evidence adduced will show that, as between the respective parties to the litigation, the evidence was about evenly balanced. In such a condition it becomes manifest that, had the questioned evidence been received and considered by the trial court, its decision might have been in favor of the appellant. In other words, to paraphrase a negative of the provision of section 4 1/2 of article 6 of the Constitution, after an examination of the entire cause, including the rejected evidence, this court should be of the opinion that the error complained of has resulted in a miscarriage of justice.