Opinion
Rehearing Denied Feb. 16, 1966.
For Opinion on Hearing, see 53 Cal.Rptr. 139, 417 P.2d 683.
DeCristoforo & DeCristoforo, by Joseph DeCristoforo and Frank Bottaro, Sacramento, for appellant.
John C. Alaimo and George DeLew, by George DeLew, San Francisco, for respondent heirs-intervenors.
E. R. Vaughn, Sacramento, for respondent-executor.
PIERCE, Presiding Justice.
Marie Baglione, the petitioner in proceedings to determine heirship in the above estate, appeals from a decree determining--but doing so conditionally--the interests of the heirs in certain property.
On February 4, 1964, the petitioner, the surviving spouse of decedent, filed her petition to determine heirship, alleging her deceased husband had died leaving a will, that Albert L. Wagner, Esquire, was the executor under that will. She named the other heirs and legatees (who were some of the husband's blood relatives) and alleged that certain Tahoe property was owned one-fourth by petitioner as community property and one-half by petitioner as her sole and separate property. The husband's will (not a part of the record) apparently treated the whole of this property as community and disposed of his one-half to his relatives as noted above.
The court decreed that the whole of said real property was the community property of the decedent and petitioner and 'that neither the decedent nor petitioner herein owned any separate interest or interests in said real property, or in any part or portion thereof.' The court then ordered: 'that an undivided one-half interest in the fee simple title to said property vested in the surviving spouse and petitioner, MARIA BAGLIONE * * * upon the death of said decedent as her portion of the community property of herself and the above named decedent * * *.' The remaining one-half interest was declared vested in the legatees under the will.
We have stated above that the determination in the decree was made 'conditionally.' The basis of that statement is that in the last paragraph of the decree the court stated: 'NOTHING HEREIN is intended as an adjudication or determination of any rights which may be asserted by any of the parties hereto arising by contract, express or implied, it being the purpose hereof to determine only those claims privy to the estate of said decedent.'
There is no doubt as to what the court intended by that statement. Early in the hearing petitioner's attorney by way of an opening statement had said that petitioner had 'worked steadily and she was the backbone The court misconstrued the extent of its powers. It relied upon the rule that, generally speaking, the probate court has no jurisdiction to determine controversies between the representative of the estate and a third person who claims adversely. (Estate of Hart, 51 Cal.2d 819, 823, 337 P.2d 73; 4 Witkin, Summary Cal.Law (7th ed. 1960) Wills and Probate, sec. 164, p. 3153, and cases cited.) But there are exceptions to this rule into one of which this case falls. Before discussing this we state the further facts shown by the short record (petitioner Marie Baglione being the principal witness).
Petitioner and decedent were married in 1927. He was a grape shipper whose business failed during the depression. For years thereafter he and petitioner, both working, acquired property, including the real property which is the subject matter of this litigation. It consists of a summer home and a motel at Lake Tahoe. Community efforts and funds went into its purchase and development. Title was taken in joint tenancy.
In 1954 the couple commenced to have domestic difficulties. On December 2, 1954, the husband transferred the property to one B who transferred it back the same day. There was no consideration for the transfer. Unquestionably the purpose on the husband's part was to 'break' the joint tenancy. The wife was aware of the existence of this transfer and retransfer a short time after the transaction.
It is one of the incidents of joint tenancy that either joint tenant may convey his separate estate by way of gift or otherwise without the approval or consent of his other joint tenant and upon such conveyance the joint tenancy is terminated. (Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d 513, Estate of Harris, 9 Cal.2d 649, 659, 72 P.2d 873.) Ordinarily the effect of the transaction described would be to create a tenancy in common between the husband and the wife. (See 2 Witkin, Summary of Cal.Law (7th ed. 1960) Real Property, sec. 112, p. 968.)
Here the parties, according to the record, seemed to evidence by their later actions another intent. The husband filed an action for a divorce in 1957. In his complaint he alleged that the Tahoe property was community. The wife in her answer admitted this. Also she filed a cross-complaint alleging it was community property. This apparently was not inadvertent. The record shows that the wife had discussed all of the circumstances of her action for divorce, presumably including the status of the property, with her then attorney, and it was upon the basis of this discussion that the allegations of her cross-complaint were framed.
Decedent's will was dated the 19th day of September 1957. At that time Mr. Wagner, the executor, was the attorney for both the parties. Before the will was made petitioner talked with Mr. Wagner who told From this evidence there is no doubt that the court's finding in its decree that the property was community by agreement of the parties was supported by substantial evidence. In fact, it is doubtful on this record whether petitioner had ever regarded the property as being anything other than community. Certainly, she did not understand the nature and characteristics of a joint tenancy. (She testified in response to a question by the court: 'I am asking if anyone ever explained to you that if that property was in joint tenancy you could not make a will of it? THE WITNESS: No.")
None of the foregoing suggests the existence of a trust agreement relating to the survivor's interest in the community share of the spouse first to die. In fact, the testimony (coming from the lips of petitioner) seems to negate such an agreement. Nevertheless, since the court's adjuration had prohibited evidence tending to prove such an agreement, we cannot say as a matter of law that petitioner had her day in court to attempt to establish such a claim. Such evidence, as stated above, had been rejected upon the ground that it was beyond the jurisdiction of the court sitting in probate to hear such evidence.
Under the rule stated at the outset of this opinion it would have been. For a more explicit statement of that rule we quote from the opinion in Estate of Stone, 170 Cal.App.2d 533, at page 535, 339 P.2d 220, at page 222, where the court (per Presiding Justice Bray) states: 'The superior court, although a court of general jurisdiction, when sitting as a probate court is a court of special and limited jurisdiction in that its jurisdiction is circumscribed in probate proceedings by the provisions of the statute conferring such jurisdiction and it may not competently proceed in a manner essentially different from that provided. [Citations.]
'One application of this doctrine is that the superior court, while sitting in probate, is without power to decide a claim between an estate and a stranger thereto. [Citations.]'
But an exception to the rule (as stated in 4 Witkin, Summary of Cal.Law (7th ed. 1960) Wills and Probate, sec. 167, subd. (1), p. 3158) is this: 'Where the wife survives, community property coming to her is subject to administration * * *; her claim to her share of the community property under Prob.C. 201 and 202 is not that of a stranger but is rather like the claim of an heir. Hence the court administering the husband's estate has jurisdiction to determine what property is community and to award her share to her.' (Central Bank v. Superior Court, 45 Cal.2d 10, 17, 285 P.2d 906.)
Contra where the husband survives. His share of the community, without administration, remains vested in him and subject to his control. (See 4 Witkin, op. cit. supra, sec. 167, subd. (2), p. 3158.) But that rule itself is not inflexible as we shall note in discussing Woods v. Security-First Nat. Bank (1956) 46 Cal.2d 697, 299 P.2d 657.
The only possible basis of arguing the inapplicability of that rule to this case is that here the wife claims her half of the community in privity with the estate and her husband's half under an agreement with him that the survivor was to receive the predeceased spouse's share, the latter claim being one adverse to the estate. As we view it this did not divest the probate court of jurisdiction, and it had power to determine the whole matter.
Probate Code section 1080 authorizes 'any person claiming to be an heir of the decedent or entitled to distribution of the estate or any part thereof' to file a petition in the probate proceedings setting forth his claim and praying for a determination by the probate court as to who are entitled to distribution. (Emphasis supplied.) All In Woods v. Security-First Nat. Bank, supra, 46 Cal.2d 697, 299 P.2d 657, plaintiff's wife's will with its codicil, both executed before her marriage to plaintiff, were admitted to probate. The surviving husband was not a beneficiary thereunder. He filed a petition under Probate Code section 1080. In the petition he claimed (1) an antenuptial agreement between the spouses that upon their marriage her separate property would become community, (2) the marriage had brought about the transmutation of the property to community automatically, and (3) as a result the wife had died intestate. The probate court, after hearing the matter, decided that the claimed agreement did exist and that the husband was entitled to one-half of the property. Our Supreme Court in Woods (on pp. 703-704, 299 P.2d 657) held that the husband had properly invoked the jurisdiction of the probate court in the heirship proceedings. It also held (at p. 704, 299 P.2d at p. 661): 'The court had the right to decide the question at issue, as the plaintiff in asserting that he was an heir was thereby claiming through the estate and not adversely to it. [Citation.] It mattered not whether the court sitting in probate found the property to be community or separate. It had the power to decide the question of heirship presented in the petition and the determination therein is res judicata. The fact that the petition also sought to have the entire estate declared to be community property did not oust the court sitting in probate of jurisdiction to determine the question of heirship.'
In the case at bench petitioner had standing as survivor of the community to invoke the jurisdiction of the probate court under Probate Code section 1080. She was claiming an undivided portion of a parcel of real estate. At the time she filed her petition she could not know whether she would wind up with more or less than a half interest in the property and whether in her role as survivor of the community or in some other role. She could not, in advance of the proceeding, make a prediction that some unknown part of her claim was within and another part outside the jurisdiction of the probate court. Nor should she be fastened with an 'after the fact' jurisdictional exclusion decreed by the probate court once she had properly invoked its jurisdiction. Title to a single parcel of real property was sought to be quieted. All parties necessary to the determination of all issues were before the court. A single cause of action was involved. A single cause of action should not be split.
The language of Probate Code sections 1080-1082 is, we believe, broad enough to confer jurisdiction in a case such as this. To argue that the Legislature intended to limit its jurisdiction to settle only part of the single issue and that therefore title to the property must be tried piecemeal is to accuse the Legislature of having intended an absurdity. True, it has been pointed out that the limited-powers and divided-jurisdiction doctrines do in some instances lead to incongruous results, as when a probate court is authorized to approve a compromise between the personal representative of an estate and a stranger but is not authorized to enforce performance of the agreement (see Estate of Boyd, 212 Cal.App.2d 634, 28 Cal.Rptr. 258); but in invoking such rules the courts have been confronted with situations where the Legislature has clearly limited the powers of the superior court sitting in probate. As we view the facts of this case the court's jurisdiction has not been so limited here.
Thus far in this opinion we have treated the problem as one solely of statutory interpretation. We think a decision In re Clary,
In Estate of Gilmaker, 57 Cal.2d 627, 21 Cal.Rptr. 585, 371 P.2d 321, it was held that although a superior court sitting in probate does not have jurisdiction to remove a trustee of a testamentary trust, where a motion was made by the beneficiary of a trust in the probate proceeding and the trustee appeared and defended and none of the other beneficiaries were indispensible parties, the court acted within its general equity powers in hearing and ruling upon the motion. Also held was that the appeal from the order denying the motion was an appeal from a final judgment. The foregoing holding was made notwithstanding the pendency of a separate action brought by the trustee for a definition of his powers. (In Auslen v. Superior Court, 58 Cal.2d 820, 823, 27 Cal.Rptr. 8, 377 P.2d 72, the decision in Estate of Gilmaker, supra, was distinguished upon the ground that in Gilmaker, unlike Auslen, all indispensible parties were before the court. That distinction does not exist in the case at bench. Here, as stated, all parties were before the court.)
As stated above there is nothing in this record to indicate any trust agreement or any facts other than a widow disappointed that her deceased husband exercised his legal right to dispose of to others his one-half of the community property.
Nevertheless, petitioner was precluded from offering evidence on the subject and should have an opportunity to do so.
The decree appealed from is reversed with directions to the trial court to hear such further competent evidence as may be produced in addition to that already in the record bearing upon any claims of any of the parties respecting the title to the property in question.
FRIEDMAN, J., and WARNE, J. pro tem., concur.