Armstrong's Estate, In re

Decision Date21 March 1966
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn the Matter of the ESTATE of Ella C. ARMSTRONG, an Incompetent. Nettie KUHLKEN, Stephen Briening and Bank of America, National Trust and Savings Association, Appellants, v. Gladys G. SEAVEY, Petitioner and Respondent. In the Matter of the ESTATE of Oscar B. ARMSTRONG, Deceased. Gladys G. SEAVEY, Petitioner and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Nettie Kuhlken, Stephen Briening, Edward Briening and Geraldine Jordhay, Respondents. Civ. 28938, 28939.

Lauren M. Handley, Los Angeles, Andrew P. Costelli, Oakland, Ivan L. Smith, Los Angeles, for appellants and respondents Kuhlken, Briening and Bank of America.

Jess F. High and Edward L. Lascher, Van Nuys, for respondent and appellant, Seavey.

ROTH, Presiding Justice.

On April 12, 1963 Oscar B. Armstrong (Oscar) died. Gladys Seavey (appellant), daughter of the deceased and executrix of his estate, appeals from a decree determining interests in Oscar's estate pursuant to a petition she filed under Probate Code, §§ 1080 and 1081, on November 13, 1963, requesting such a determination.

Respondents Nettie Kuhlken, Stephen Briening, Edward Briening and Geraldine Jordhay, all relatives of Ella C. Armstrong (Ella), Oscar's wife who died approximately two months after Oscar, filed petitions in April 1964 in accordance with the aforementioned sections, claiming an interest in Oscar's estate as distributees under the will of Oscar, and also as heirs and residuary legatees under Ella's will. Respondent Bank of America became a party to the proceeding as executor of Ella's decedent estate.

The decree, filed August 3, 1964, finds all property of Oscar's estate to be the separate property of Oscar's deceased wife, Ella, and orders appellant to 'transfer and deliver to Bank of America * * * all assets of any kind or nature which (appellant) is attempting to administer in this estate, to be administered by said Bank as Executor of the Estate of Ella C. Armstrong, deceased;'.

On December 11, 1962, prior to the death of the Armstrongs, Ella was declared incompetent and appellant was appointed guardian of her person and estate. Subsequently, Oscar filed suit against appellant as guardian of Ella, requesting a declaration by the court of the status of their property. On April 8, 1963, four days before Oscar's death, a written stipulation was executed stating that the parties to the suit agreed that all property owned by both or either of the parties was community property and further, that the court might enter judgment in the guardianship estate to that effect. No such judgment was ever entered. Appellant did not in her capacity as guardian of Ella seek or obtain permission from the court acting in the guardianship to enter into such a stipulation. No proceedings were taken by Ella as executrix of Oscar's estate, he having died four days after the stipulation to have a judgment entered on the stipulation.

On April 12, 1963, four days after the execution of the foregoing stipulation, Oscar died. His will was admitted to probate on May 17, 1963 and on said date appellant, the principal beneficiary of his will, was named executrix.

On June 14, 1963 Ella died. Her will, under which appellant took nothing, was admitted to probate and respondent Bank of America was named executor.

On September 5, 1963, approximately four months after appellant had been appointed executrix in Oscar's estate, and after the appointment of Bank of America as executor of Ella's estate, 1 appellant, as guardian of Ella, filed in the guardianship proceeding a first and final accounting. The accounting and report itemized Ella's assets which consisted primarily of real property and bank accounts and a few items of personal property, and described her interest therein as 'an undivided one-half community interest' totaling $72,255.96. In an uncontested ex parte proceeding, after proper notice had been given, the probate court, without a hearing, entered an order settling the account of the incompetent's estate as follows: 'It is Ordered, Adjudged and Decreed by the Court that said guardian has in her possession belonging to said estate * * * a balance of $72,225.96, of which $1,290.08 is in cash, and said account and report is hereby approved, allowed and settled accordingly; * * *.' After paying certain fees, appellant was ordered to turn over the balance of the assets to the personal representative of Ella Armstrong, deceased, for probate administration, and upon filing a receipt therefor, appellant was to be discharged. 2 From this order, respondents Nettie Kuhlken, Stephen Briening and Bank of America appeal. This appeal has been consolidated with the appeal of appellant in the Estate of Oscar. It is also before us.

On November 6, 1963 appellant filed an inventory and appraisement as executrix of Oscar's estate. The assets inventoried were identical to those included in the guardianship report but were itemized at full rather than half value.

As noted above, appellant thereafter petitioned the court to determine all interests in Oscar's estate. Respondents filed statements declaring their interest in the estate on April 1 and April 9, 1964. After a trial on the status of the property, the court, on August 3, 1964 filed findings of fact and conclusions of law, and issued a decree determining interests in the estate. The decree states in part: 'That all property standing in the name of Ella C. Armstrong on December 11, 1962, the date of the Order appointing Gladys G. Seavey as Guardian of her Estate, as an incompetent person, was on said date and at all times prior thereto had been the sole and separate property of Ella C. Armstrong, and her husband, Oscar B. Armstrong did not at any time have any right, title, or interest therein, as being the community property of the spouses or otherwise; That all of said property was properly subject to administration in the Estate of said incompetent person, although said guardian attempted to administer a fraction thereof only, and on the death of said ward, the whole thereof, whether administered in the guardianship proceedings or not, was thereafter distributable to the estate of the deceased ward, to wit: Bank of America National Trust and Savings Association; as Executor thereof; * * *.'

The property listed in the decree as being the separate property of Ella was identical to the property inventoried by appellant both as executrix of Oscar's estate and as guardian of Ella.

Preliminarily we deal first with appellant's contention that respondents Nettie Kuhlken, Stephen Briening and Bank of America may not appeal from the order settling the final account in the guardianship proceedings since they were not parties to that proceeding. While such an order is appealable (Probate Code, § 1630), C.C.P., § 938 requires an appellant to be a 'party aggrieved.' Whether respondents are such persons is a question not without difficulty. One line of cases represented by Estate of McDermott, 127 Cal. 450, 59 P. 783; Estate of McDougald, 143 Cal. 476, 77 P. 443; Eggert v. Pacific States Savings and Loan Company, 20 Cal.2d 199, 124 P.2d 815; Estate of Silver, 92 Cal.App.2d 173, 206 P.2d 895; and Rose v. Rose, 110 Cal.App.2d 812, 243 P.2d 578, hold that a person entitled to appeal must be a party of record and move to vacate the judgment or otherwise oppose the judgment appealed from below. None of the persons mentioned were parties to the record in the guardianship estate and no such motion was made. Another line of authority, represented by Estate of Benner, 155 Cal. 153, 154, 99 P. 715; Estate of Levy, 4 Cal.2d 223, 226, 48 P.2d 675; Guardianship of Copsey, 10 Cal.2d 748, 76 P.2d 691; Estate of Moran, 122 Cal.App.2d 167, 264 P.2d 598; and Estate of Sloan, 222 Cal.App.2d 283, 291--292, 35 Cal.Rptr. 167, hold that the right to appeal is determined solely by whether the appellant is 'aggrieved.' Estate of Sloan, supra, the most recent of the cases in either line, distinguishes those decisions requiring appellant to be a party of record as applying the rule in fact only to persons who were not Aggrieved.

It is clear from the record that the appeal from the guardianship order was taken to prevent its determination of the character of Ella Armstrong's property from becoming final and binding on the proceedings in Oscar's estate. Appellant does not seriously contend, however, that the guardianship order was Res judicata or in any way collaterally estopped the court in Oscar's estate from determining the community or separate nature of his assets. It is settled by many decisions that Res judicata is a defense which must be raised and determined in the pertinent action, and does not go to the jurisdiction of the court. (1 Witkin, California Procedure 323 and cases cited.) Appellant did not raise this defense in the proceeding in Oscar's estate, nor was the guardianship order offered into evidence. The order could not, therefore, bind the court determining interests in the Estate of Oscar.

Appellant was ordered, both as guardian of Ella's estate and executrix of Oscar's estate to turn all assets over to the Bank of America as executor of Ella. The guardianship estate is now a shell, existing only to insure that whatever assets of the ward in the possession of the guardian are transmitted to the ward's decedent's estate. Absent any binding effect of the guardianship order, respondents Kuhlken, Stephen Briening and Bank of America, appellants in the Estate of Ella C. Armstrong, an incompetent, are not aggrieved; the decree in no way adversely affects their interests. (See Estate of Sloan, supra, 222 Cal.App.2d at p. 291, 35 Cal.Rptr. 167.) Since they have not made themselves a party to the proceedings by moving to vacate the order from which they...

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