Auslen v. Superior Court of City and County of San Francisco

• Decision Date: 11 December 1962
• Court: California Supreme Court
• Parties: , 377 P.2d 72 Harry AUSLEN et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents; Morris AUSLEN, Individually and as Administrator, etc., et al., Real Parties in Interest. S. F. 21107.

Page 8

27 Cal.Rptr. 8

58 Cal.2d 820, 377 P.2d 72

Harry AUSLEN et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents;

Morris AUSLEN, Individually and as Administrator, etc., et al., Real Parties in Interest.

S. F. 21107.

Supreme Court of California, In Bank.

Dec. 11, 1962.

Eisner & Titchell, Norman A. Eisner and Haskell Titchell, San Francisco, for petitioners.

No appearance for respondents.

Leonard S. Lurie, San Francisco, for real parties in interest.

McCOMB, Justice.

Petitioners (Harry, Richard and Donald Auslen) allege that respondents (the Superior Court of the City and County of San Francisco, the Superior Court of Sacramento County, and Judges Arnold and Henry of those courts) are simultaneously asserting jurisdiction over the same inter vivos trust. Petitioners seek a writ of prohibition restraining one or the other of respondent courts from proceeding further with respect to said trust. We have issued alternative writs of prohibition temporarily restraining both respondent courts from so proceeding.

Morris Auslen, individually and as administrator of the estate of Harry Auslender, William Auslen, Jr., Kate Auslen Abrahams and Pauline Auslen Lurie are the real parties in interest.

Facts: Following the death of Harry Auslender, his sister, Celia Appelbaum, created an inter vivos trust, to which she assigned, among other assets, her interest in his estate, which amounted to half of the estate. Petitioner Harry Auslen was made trustee. The net income of the trust was to be paid to the trustor for life, and upon her death was to be paid in varying proportions to three of the real parties in interest (Morris Auslen, Kate Abrahams and Pauline Lurie), two of the petitioners (Richard and Donald Auslen), and William Auslen. In the event of the death of one of these beneficiaries, his share was to be paid to the survivors or to certain other persons. The trustee was given authority to terminate the trust after the death of the trustor. Upon termination, the corpus was to be distributed to the persons then entitled to the income in proportion to their respective rights thereto. If any beneficiary attempted to set aside the trust or to invalidate any of its provisions, his share was to be forfeited.

Celia Appelbaum died on January 18, 1959, while the probate of her brother's estate was still pending. The following day Harry Auslen, as trustee, declared the termination of the trust.

In April 1960 Morris Auslen filed in the Superior Court of Sacramento County in the Auslender estate proceeding a petition to determine heirship under section 1080 of the Probate Code. The petition, which was subsequently dismissed, sought, among other things, a declaration that the Celia Appelbaum Trust was invalid.

While the petition was pending, a stipulation was made by or on behalf of Harry Auslen (one of the petitioners herein), the real parties in interest herein, and the attorney for the estate of Auslender. The stipulation provides, in part, that the Superior Court of Sacramento County sitting in probate in the matter of the estate of Auslender has 'exclusive jurisdiction' of all matters relating to the Celia Appelbaum Trust, that the validity of the trust will be presumed, and that the court shall have 'sole and exclusive jurisdiction relative to the administration of the said trust from its inception.' Two of the beneficiaries of the trust, petitioners Richard and Donald Auslen, did not enter into the stipulation and did not appear in the Sacramento proceeding. In July 1960 the superior court entered an order making determinations in accord with the matters set forth above in the stipulation. Harry Auslen filed a first account as trustee, which account was approved by the court, and subsequently the court ordered certain distributions to him, as trustee.

Some time after the filing of the petition to determine heirship, Harry Auslen declared the interests of the real parties in interest in the trust estate forfeited because they had contested, or cooperated in contesting, the validity of the trust.

In January 1962 Morris Auslen filed another petition to determine heirship in the Superior Court of Sacramento County seeking a declaration that the trust had terminated and that the beneficiaries of the trust should be considered heirs of the estate of Auslender to the extent of their beneficial interest in the portion of the estate distributable to the trust.

On April 3, 1962, the court issued an order stating that the Celia Appelbaum Trust had been terminated on January 19, 1959, and that since that date the trust had been passive and should be disregarded in determining those persons entitled to any further distribution of the estate. The order also named the persons entitled to such distributions and the amount of their respective interests and ordered Harry Auslen to file a further...