Opinion
Hearing Granted April 26, 1961.
Opinion vacated 14 Cal.Rptr. 643.
Walter Gould Lincoln, Solano Beach, for appellants.
Rosalind Goodrich Bates, Los Angeles, for respondents.
GRIFFIN, Presiding Justice.
Murray Schloss died June 28, 1927 in Los Angeles. His will was filed for probate in Riverside County. Respondent Fred S. Reinhold was named one of the three executors in the will. The main property consisted of about 2,300 acres of valuable land located partially in Riverside County and partially in San Diego County, cash estimated at $7,635.34 and stocks returning dividends of $2,250 per year. By the terms of the will, decedent left all this property to a nebulous class of persons 'who are interested in improving the all-sided progress of mankind * * * a charity most worthy and having a tendency to promote and improve the all-sided progress of mankind, particularly among those people who are in accord with the teachings of the Temple or Church of the Dawn, a California Corporation.' The property was so distributed by a decree in 1931. By the will, the decedent appointed 10 trustees to administer the trust, to be known as the 'Murray Schloss Foundation for Hothan Pioneering.' Numbered among the trustees were Fred S. Reinhold, Otto Witchner, Leach P. Lovell, Walter Gould Lincoln, Vera W. Richter and Robert DeLuce. The other trustees subsequently resigned or died. All were appointed and qualified as such trustees. By-laws were adopted. Appellant Lincoln, one of the trustees, was designated attorney for the trustees or trust. According to the pleadings of respondent Reinhold, there had been no meetings of the trustees of which that respondent was notified for many years and he claimed appellant Lincoln refused to answer letters addressed to him, as attorney for the trustees, which were written by this respondent, and refused to inform him who were, during this time, acting and qualified as trustees of the trust. Reinhold was at one time president of the foundation. He alleges that upon the death or resignation of Guy and Lucy Bogart, trustees named in the will, the remaining members of the board attempted to appoint Vocha Fiske White and Hugo Seelig to these vacanies; that Lincoln, the attorney for the trust, drew up the by-laws and assumed that the appointment of the last two named persons was illegal and unauthorized. It was not until about one year later that Lincoln recorded the by-laws and at that time there were appended two additional signatures On September 1, 1959, in a petition signed by M. W. Beale, she alleged that she was one of the trustees appointed and that there were two vacancies on the board which should be filled at once. She submitted the names of two persons and gave reasons for their appointment. Opposition was filed by Reinhold and Witchner, as trustees, to these appointments. Apparently respondent Reinhold had no knowledge as to who M. W. Beale was up to that time or where she or Lincoln resided other than the city of Los Angeles. On November 12, 1959, the trial judge ordered Lincoln, within 24 hours, to inform him of the names and present addresses of the trustees, and it was at that hearing that Reinhold first learned that M. W. Beale was Lincoln's wife, that formerly she had been his secretary, and that through Lincoln the trustees had appointed Lincoln's two sons, Allen and Malcolm, as members of the board, without notice to the trustees as a whole.
A request was made by Lincoln that all matters pending in the estate be continued from September 18 until October 23, 1959, in order to allow all of the existing trustees to be notified of the above proceeding. M. W. Beale wrote the clerk of the court requesting that her petition, then set for September 18, be continued to September 25 so that she could give 10 days' notice to the trustees of such hearing. She filed an affidavit of mailing notice to four of them, including Reinhold and Witchner. Several of the other trustees admitted service and gave written approval of the two proposed appointments. Lincoln, as 'attorney for estate,' on September 24, 1959, filed a motion to strike portions of Reinhold's objection to this petition for appointment and also filed a demurrer thereto 'in proper person.'
Thereafter, on September 29, 1959, Reinhold and Witchner, as trustees, filed a petition for appointment of Mrs. Eleanor Hall and Benjamin F. Soffe as trustee members of the foundation, and Beale, DeLuce, Lovell and the three Lincolns were sent copies of the petition by mail from Los Angeles on November 16, 1959. On November 23, 1959, seven of the then remaining trustees, through their attorney, Lincoln, filed an answer to this petition for appointment and denied generally and specifically the allegations contained therein. On November 27, Reinhold petitioned the court to remove Lincoln and Beale as trustees, setting forth certain grounds enumerated and alleging a conspiracy between Lincoln and his wife to absolutely control said trust property; that he had allowed the property to deteriorate; and had not permitted any community or colony interest in the trust property and had offered a great portion of the acreage for sale, in violation of the trust, etc. A citation or order to show cause was issued and served on them by the Sheriff of San Diego County at Solana Beach in that county on November 30, 1959 and December 3, 1959. It ordered them to appear in Riverside County on December 10, 1959. They did not appear on that date, in person, and the court, according to the minutes, stated that in the absence of Mr. Lincoln, the court ordered the petition 'for appointment of trustee' (both petitions) continued to December 18, 1959. The minute order recites that on December 'The following matters came on regularly for hearing this date, and proof being made to the satisfaction of the Court: It Is Found: That notice of each of said hearings has been given according to law; that the allegations of each petition on which the orders are made are true.
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'Counsel: Walter Gould Lincoln, Rosalind T. Bates
'Proceedings: Motion for Change of Venue. Demurrer of Walter Gould Lincoln & [M. W.] Beale to the Pet. of Removal of Trustees.
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'All pending matters, either noticed for or continued to this date, continued to December 23, 1959 * * *'
On December 18 these matters were continued to December 23, 1959. The clerk, under date of December 18, 1959, wrote Mr. Lincoln at his Solana Beach address, as counsel for the trustees, and to counsel for Reinhold, that all matters had been thus continued to December 23.
On December 15, 1959, Lincoln wrote the trial judge, fearing his prior absence might be interpreted as a discourtesy to the court, and said that he felt any argument that he would make would not add to the cause and that he would not argue the change of venue motion set for December 18. It further appears that on December 16 the trial judge in Riverside County received what purported to be a telegram from W. H. Veeder, Special Assistant to the U. S. Attorney General at San Diego, who was engaged in water litigation in the federal court at that place, indicating that the government had requested the attendance of Lincoln there on December 18, 1959, and a similar telegram was sent to counsel for Reinhold. It later developed that Veeder had not authorized his signature to any such telegram and that he had made no representation in reference to the claimed continuance.
On December 23, the time set for hearing on the above matters, neither Mr. Lincoln nor any of the trustees he represented appeared. The bailiff paged Lincoln and the named trustees in the hallways, without success. Proof of service was made and the court proceeded to hear first the motion for change of venue which was denied. The demurrer to the petition for removal of trustees was overruled. After taking both oral and written evidence, the petition for removal of Lincoln and Beale as trustees was granted. The court then appointed Eleanor Hall and Benjamin F. Soffee as trustees in place of the two deceased trustees.
On December 29, the judge accordingly signed orders and a judgment, from which appellants appeal. Therein it is recited that the petition to remove Lincoln and Beale as trustees was regularly set and notice was given for December 18, and that these parties did not appear but sent a wire purportedly from Mr. Veeder, which proved to be a misrepresentation of the sender, and that a continuance was granted to December 23 and due notice was given them of such continuance, and on the later date they did not appear, and evidence, both oral and written, was offered by the attorney Reinhold and Witchner, trustees, and it was therefore ordered that Lincoln and Beale be removed. Thereafter the court appointed Hall and Soffee trustees.
There were no other written findings. Written findings of fact are deemed waived by a party who fails to appear at the trial. Code Civ.Proc. § 632. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions. Prob.Code, § 1230. Notice of these orders and judgment was sent to Lincoln and the remaining On December 31, counsel for Reinhold, Witchner, Hall and Soffee petitioned the court for appointment of Vocha Fiske White and Hugo Seelig to fill the vacancies created by the removal. The petition was noticed for hearing on January 12, 1960 and copies mailed to Lincoln and the other trustees. They made no appearance. The matter was continued until January 22 and notice of such continuance was mailed to all trustees. On January 11, the court received a document entitled 'Objection of Majority Trustees [including Lincoln and Beale] to the Appointment of Vocka Fiske White and Hugo Seelig as Trustees,' claiming no jurisdiction on the part of the court to act because Lincoln and Beale were improperly removed as trustees. Lincoln also filed an affidavit in opposition thereto, claiming that he resided in San Diego County, more than 100 miles from Los Angeles, and that accordingly the citation issued to him and his wife to appear on December 10, 1959 (to show cause why they should not be removed) was untimely, in that they were allowed 30 days to answer under Probate Code, § 1126, and Code of Civil Procedure, §§ 1012, 1013 and 1013a, and that no notice was given to beneficiaries and no notice of overruling his demurrer was given as provided in Code of Civil Procedure, § 1014.
On January 22, neither Lincoln nor the trustees represented by him appeared in court at the hour set, and the court overruled the objections and appointed these two trustees. The minute order recited that the bailiff was sworn and examined and he testified that Mr. Lincoln was present in court at 8:35 a. m. on January 22, but was not present at the time of the hearing. The record shows that on January 22 Lincoln deposited with the clerk a note stating that his motion in the Schloss Estate had been transferred from the probate department to a civil department and he would therefore submit the motion, but he was not appearing in any manner in the Bates petition. The note was filed in the proceedings. The two trustees designated were appointed over the opposition filed.
On January 11, 1960, Lincoln and Beale filed a motion to set aside the 'actions done' and decrees and orders made, on the grounds set forth in the objections theretofore filed, citing such authority as Holmes v. Anderson, 90 Cal.App. 276, 265 P. 1010; Heinlen v. Heilbron, 94 Cal. 636, 30 P. 8; and Carlon v. Gray, 10 Cal.App.2d 658, 52 P.2d 966. Lincoln and Beale appealed from the orders made on December 23, 1959 and other orders thereafter made.
On March 7, 1960, this court (4 Civil No. 6344) denied Lincoln's petition for mandate commanding the trial judge to vacate the order ousting him and his wife as trustees and all orders flowing therefrom. The ground stated was lack of jurisdiction to enter the orders, predicated mainly upon the claim of insufficient time in reference to notice by citation and improper ruling on the motion for change of venue.
The principal question here involved pertains to the jurisdiction of the superior court in a probate proceeding involving a testamentary trust to remove trustee by reason of malfeasance or mismanagement of the trust. In support of their contentions, appellants cite such authority as Dungan v. Superior Court, 149 Cal. 98, 102, 84 P. 767; Fisher v. Superior Court, 23 Cal. App.2d 528, 534, 73 P.2d 892; Estate of Rey, 31 Cal.App.2d 648, 654, 88 P.2d 718.
Both parties cite 2 Condee California Probate Practice, section 1108, page 88, which states:
'The Probate Code does not provide any procedure for the removal of a trustee * * * but the code does assume that possibility, for in its provisions for the appointment of a successor trustee it states that this may be done where 'the trustee of a testamentary trust dies, resigns, or is removed.' [Probate Code, sec. 1126.] It is certain that a trustee may be removed for cause. The Civil Code provides that the superior court may remove any See also 2 Condee California Probate Practice, sec. 1092, p. 74, and Probate Code, §§ 1126 and 1120 as amended in 1959. In Estate of Hubbard, 122 Cal.App.2d 942, 266 P.2d 196, it was held that:
'Language employed by Prob.Code, § 1120, relating to administration of testamentary trusts, was intended to broaden jurisdiction of probate court so as to give that court jurisdiction over practically all controversies which might arise between trustees and those claiming to be beneficiaries under [the] trust.'
In Estate of Charters, 46 Cal.2d 227, 236, 293 P.2d 778, 784, it was said:
'Having jurisdiction of the controversy between the trustee and the beneficiary of the trust under section 1120 of the Probate Code, the court could 'bring to its aid the full equitable and legal powers with which, as a superior court, it is invested.''
See also Estate of Hensel, 144 Cal.App.2d 429, 435, 301 P.2d 105. In Estate of Bouche, 24 Cal.App.2d 86, 74 P.2d 563, it is held that when the assets of a testamentary trust are in jeopardy by reason of the inability or unwillingness of the trustee to act, or by reason of the adverse interest of the trustee, he may be removed. In Schuster v. Superior Court, 98 Cal.App. 619, 624, 277 P. 509, 511, it was said:
'Indeed, our Legislature, sensing something of the situation which might arise by action of different courts in different counties of our own state, has said, in section 1699 of the Code of Civil Procedure, that 'where any trust has been created by or under any will to continue after distribution, the superior court shall not lose jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trusts,' and has outlined the procedure therefor. It would slso be utterly inconsistent with any proper concept of judicial authority to charge a court with the responsibility of settling the accounts of the trusts to say that it did not have the power to remove a recalcitrant or neglectful trustee.'
See also Dowdall v. Superior Court, 183 Cal. 348, 191 P. 685. In Estate of Keyston, 102 Cal.App.2d 223, 228, 227 P.2d 17, 21, which involved a petition to remove a trustee under a testamentary trust, the court said:
'Whether a trustee should be removed, however, is a matter within the sound discretion of the trial court and is "dependent upon the circumstances of each particular case."' Citing Estate of Brown, 22 Cal.App.2d 480, 486, 71 P.2d 345.
See also Estate of Bauer, 199 Cal. 98, 248 P. 507; Estate of Ross, 179 Cal.App.2d 765, 4 Cal.Rptr. 95; Estate of Baird, 135 Cal.App.2d 343, 351, 287 P.2d 372; 4 Witkin, Summary of California Law 3160 section 169(b); 49 Cal.Jur.2d 28 section 170.
A distinction may appear in relation to testamentary trusts as compared to inter vivos and other such trusts. Apparently appellants are relying upon the rule applicable to inter vivos and such other trusts. See Moore v. Bowes, 8 Cal.2d 162, 64 P.2d 423.
A review of the evidence produced indicates a sufficient showing and justification for the removal of Lincoln and his wife as trustees. Brown v. Memorial Nat. Home Foundation, 162 Cal.App.2d 513, 329 P.2d 118. Restatement, Trusts, (2d ed.), section 107, holds that it is a general rule that if there are several trustees, one or more of them can maintain the suit against another to compel him to perform his duties under the trust, or to As to claimed lack of timely notice in reference to the order to show cause and citation for appellants Lincoln and Beale to appear in answer to the petition for their removal, the record shows that a citation was issued on November 27, 1959 directing them to appear on December 10. Service by the sheriff on M. W. Beale was had November 30, and on Lincoln, December 3. Assuming that Probate Code, § 1200, is applicable and 10 days' notice is required, and that Code of Civil Procedure, §§ 1012 and 1013 are applicable, it well appears that these trustees did appear by filing a motion for change of venue on December 9 and also appeared by filing a demurrer to the petition and that these matters were set for hearing on December 18 and were subsequently continued to December 23, apparently at their suggestion that Lincoln was appearing in federal court in San Diego. There were other appearances indicated as above set forth. Since these trustees thus appeared in the matter, their claim of lack of sufficient notice is untenable. The issuance of service of a citation or summons in the manner provided by statute is the means whereby a court compels appearance before it in order to acquire jurisdiction over the person. When a defendant appears generally without making objection to the process, such appearance accomplishes the purpose of the process, since he has voluntarily submitted himself to the jurisdiction of the court and empowered it to act in the premises. Randall v. Falkner, 41 Cal. 242; Harrington v. Superior Court, 194 Cal. 185, 228 P. 15; 5 Cal.Jur.2d 44 sec. 42. In accordance with the general rule, the fact that service may have been defective or that a true copy of the petition was not served on the appellants becomes immaterial where they make a general appearance. The rule applies also in the case of the general appearance of parties to probate proceedings. Milstein v. Ogden, 84 Cal.App.2d 229, 190 P.2d 312; Abila v. Padilla, 14 Cal. 103; Estate of Johnson (Johnson v. Tyson), 45 Cal. 257; Spangenberg v. Spangenberg, 123 Cal.App. 387, 11 P.2d 408; 5 Cal.Jur.2d 45 sec. 42.
Appellants also contend that the appointments of White and Seelig as successor trustees are invalid because of insufficient notice of the hearing at which the appointments were made. Appellants appeared in opposition to the appointment of the new trustees and accordingly notice thereof was waived. Notices were mailed to all trustees of the filing of the petition to fill vacancies created by removal of Lincoln and Beale. A majority of the trustees did appear and filed objections, through their attorney Lincoln, to some of these proceedings. From the record before us, it appears that there were no ascertainable beneficiaries under the will who were entitled to receive notice under Probate Code, § 1200. A statute should not be so construed as to require an idle or useless act. Orange County Water District v. Farnsworth, 138 Cal.App.2d 518, 525, 292 P.2d 927; In re Haines, 195 Cal. 605, 234 P. 883; Civil Code, § 3542.
As further evidence that the beneficiaries attempted to be designated were not ascertainable, it should be noted that appellants, in their petition for appointment of trustees, never mailed any such notices, although they now complain because respondents failed to do so.
Murray v. Superior Court, 207 Cal. 381, 278 P. 1033, held that under the then Code of Civil Procedure, § 1304 (now Probate Code, § 328), it is not necessary to serve legatees not specifically named in the will, but designated therein as a class, with copies of notice of application for probate of the will in order that the court have jurisdiction to proceed with the contest of the will before probate, and that the provision of that section that copies of the notice of application for the probate of a will must be 'addressed' to the legatees Furthermore, appellants here, at the time they gave notice of appeal, do not appear to be parties interested and authorized to appeal from the orders made appointing other trustees after the order was properly made removing them from their office as trustees. Code Civ.Proc. § 938; In re Danielson, 88 Cal. 480, 26 P. 505.
Lincoln and Beale, individually, were the only persons appealing from these orders. In Bank of New York & Trust Co. v. Tilton, 82 N.H. 81, 129 A. 492, it was held that a deposed trustee has no right to object to the sufficiency of the notice of proceedings re appointment of a successor trustee. Only aggrieved parties are entitled to appeal. Luckenbach v. Laer, 190 Cal. 395, 212 P. 918; Russell v. Weyand, 5 Cal.App.2d 259, 42 P.2d 381.
The petition for change of venue was properly denied. Golden Cross Min. & Milling Co. v. Spiers, 115 Cal. 247, 47 P. 108, and Spangenberg v. Spangenberg, supra, 123 Cal.App. 387, 11 P.2d 408, involved trusts other than testamentary. It affirmatively appears that, at least, since the enactment of Probate Code, § 1120 et seq., in its present form, the Superior Court of Riverside County acquired jurisdiction of the parties and the cause, and a motion to transfer the matter to San Diego County for hearing, on account of the residence of two of the trustees, was not mandatory. Schuster v. Superior Court, supra, 98 Cal.App. 619, 627, 277 P. 509.
There is no appeal from an order overruling a demurrer. Harmon v. De Turk, 176 Cal. 758, 169 P. 680.
We conclude that the trial court acquired jurisdiction of the parties and of the subject matters under consideration and was authorized to dispose of them. Estate of Hensel, 144 Cal.App.2d 429, 433, 301 P.2d 105.
Orders and judgment affirmed.
SHEPARD and COUGHLIN, JJ., concur.