Opinion
8-4-1954
In re QUINN'S ESTATE. ATTORNEY GENERAL OF CALIFORNIA v. HATCH. Civ. 16072.
Edmund G. Brown, Atty. Gen., W. R. Augustine, Dep. Atty. Gen., Wayne D. Hudson, Dep. Atty. Gen., for appellant. Robert E. Hatch, San Francisco, for respondent.
In re QUINN'S ESTATE.
ATTORNEY GENERAL OF CALIFORNIA
v.
HATCH.
Aug. 4, 1954.
Hearing Granted Sept. 30, 1954.
Subsequent opinion 278 P.2d 692.
Edmund G. Brown, Atty. Gen., W. R. Augustine, Dep. Atty. Gen., Wayne D. Hudson, Dep. Atty. Gen., for appellant.
Robert E. Hatch, San Francisco, for respondent.
DOOLING, Justice.
This matter has once been before the Supreme Court. Attorney General of California v. Superior Court, 41 Cal.2d 249, 259 P.2d 1. There the Supreme Court denied the attorney general's petition for writ of mandate, by which he attempted to attack the order denying his petition to determine who are entitled to distribution, on the ground that he had a speedy and adequate remedy by appeal.
The testatrix by her will left certain money in trust to her husband and another, and 'at their deaths * * * to charity.' Both beneficiaries predeceased her and the attorney general seeks by this proceeding to have it adjudicated that by the terms of the will a charitable trust was created. The court denied the petition on the expressed ground that 'the attorney general has no standing to petition as an heir.'
The Supreme Court said in its opinion in the former proceeding (Attorney General of California v. Superior Court, supra, 41 Cal.2d 251, 259 P.2d 2) of the probate court's order: 'The court did not base its denial upon an assumed lack of power to adjudicate the heirship issue, so that there was a refusal to act and an undisposed of matter awaiting decision * * * but rather the denial indicates that the court, in the exercise of its jurisdiction, entertained the petition and made disposition thereof on the merits.'
We do not construe this as meaning, as the attorney general now contends, that by this language the Supreme Court has held that the probate court adjudicated the issue attempted to be presented to it by the appellant's petition. The order on its face shows that the probate court never reached 'the merits' in that sense. The clear meaning of the opinion is that a denial on the ground that the attorney general 'has no standing to petition as an heir' is a judicial determination of the petition and as such an appealable order.
We have thus presented the question, which the attorney general sought to by-pass, whether the attorney general is entitled under the language of Probate Code, § 1080 to appear by petition before the probate court in this estate to establish that a charitable trust was created by the testatrix' will.
It cannot be questioned that the attorney general, acting for the state as parens patriae, has the power and the duty to take whatever legal steps may be necessary to enforce and protect trusts for charitable purposes. 'The state, as parens patriae, superintends the management of all public charities or trusts, and in these matters acts through her attorney general.' People ex rel. Ellert v. Cogswell, 113 Cal. 129, 136, 45 P. 270, 271, 35 L.R.A. 269. The general current of judicial decision in this country so affirms. Passaic Nat. Bank & Trust Co. v. East Ridgelawn Cemetery, 137 N.J.Eq. 603, 45 A.2d 814, 817; Parsons v. Childs, 345 Mo. 689, 136 S.W.2d 327, 331; Cannon v. Stephens, 18 Del.Ch. 276, 159 A. 234, 236; Powers v. Home for Aged Women, 55 R.I. 187, 179 A. 610, 612; Thatcher v. City of St. Louis, 343 Mo. 597, 122 S.W.2d 915, 916; Nicolson v. Citizens & Southern Nat. Bank, D.C., 50 F.Supp. 92, 98; 5 Am.Jur., Attorney General, sec. 17, p. 246; note in 62 A.L.R. p. 884 et seq.
It is equally true that if a charitable trust is created by will without naming a trustee the probate court has the power and duty to supply the omission by naming a trustee to carry out the trust. In re Estate of DeMars, 20 Cal.App.2d 514, 67 P.2d 374; In re Estate of Clippinger, 75 Cal.App.2d 426, 434-435, 171 P.2d 567; Restatement of Trusts, sec. 397(1) and comment (e); 10 Am.Jur., Charities, sec. 38, p. 611; 14 C.J.S., Charities, § 27, p. 460; cf. Prob.Code, § 1125.
With this background we approach the narrow question here presented. Section 1080, Probate Code, provides:
'When the time to file or present claims against the estate has expired, and a petition for final distribution has not been filed, the executor or administrator, or any person claiming to be an heir of the decedent or entitled to distribution of the estate or any part thereof may file a petition setting forth his claim or reason and praying that the court determine who are entitled to distribution of the estate.'
Respondent argues, and the court held, that the attorney general, because he is neither claiming to be an heir nor entitled to distribution of any part of the estate to himself is not included among those persons authorized or entitled to file a petition under this section. Had a trustee been named in her will by the testatrix such named trustee would be a person claiming to be entitled to distribution and so qualified under the section to file a petition, In re Estate of Bunn, 33 Cal.2d 897, 899, 206 P.2d 635; In re Estate of O'Connor, 2 Cal.App. 470, 475, 84 P. 317, but here the office of trustee is vacant until and unless the court makes an appointment. In the absence of a designated trustee there is no person qualified to proceed under section 1080 to assert that the will created a charitable trust and that a trustee to be appointed by the court is entitled to have it distributed to him, unless the attorney general in his classic capacity as the officer of the state clothed with the power and duty of protecting and safeguarding charitable trusts can do so. We should not be bound by a rigid formalism in a matter in which the state itself has a paramount interest, nor lightly assume that the legislature intended to deprive the state acting through the attorney general of a privilege which it gives to all private persons claiming any right to distribution. We have concluded that it does no violence to the language or obvious purpose of section 1080 to hold that the attorney general has the right, by virtue of the power with which the law clothes him to enforce charitable trusts, acting on behalf of the undesignated trustee to assert the claim that such trustee when appointed is entitled to distribution of a portion of the estate.
As we read the order of the probate court the question whether a charitable trust was created by the testatrix' will has not been decided and that question is not before us on this appeal for decision.
Order reversed with directions to the probate court to take further proceedings in accordance with this opinion.
NOURSE, P. J., and KAUFMAN, J., concur.