Bodine v. Superior Court In and For Santa Barbara County

• Decision Date: 08 November 1962
• Citation: 209 Cal.App.2d 354,26 Cal.Rptr. 260
• Court: California Court of Appeals Court of Appeals
• Parties: William W. BODINE, Jr., Ross Whistler, Eleanor Gray Perry, Samuel T. Bodine, James F. Bodine and Jane Bodine Siniffen, Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent. Van Ness How BATES, Crocker-Anglo National Bank, Frederic S. Granger, Daniel B. Granger and Gordon B. Granger, Real Parties in Interest. Civ. 26570.

Page 260

26 Cal.Rptr. 260

209 Cal.App.2d 354

William W. BODINE, Jr., Ross Whistler, Eleanor Gray Perry, Samuel T. Bodine, James F. Bodine and Jane Bodine Siniffen, Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent Van Ness How BATES, Crocker-Anglo National Bank, Frederic S. Granger, Daniel B. Granger and Gordon B. Granger, Real Parties in Interest.

Civ. 26570.

District Court of Appeal, Second District, Division 2, California.

Nov. 8, 1962.

Latham & Watkins, Los Angeles, Schramm, Raddue & Seed, Santa Barbara, for petitioners.

Griffith & Thornburgh, Santa Barbara, for real party in interest Van Ness How Bates.

Rogers & Wilcox, Santa Barbara, for real party in interest Crocker-Anglo Nat. Bank.

Ross & Harris, Howard C. Parke, Santa Barbara, for real parties in interest Granger.

ASHBURN, Justice.

Petition for prohibition against impaneling or employing a jury in the hearing of the scond half of a petition for determination of heirship in the Estate of Louise W. How, also known as Louise Bodine How. Alternative writ was issued. We now hold that the peremptory writ should be granted.

Crocker-Anglo National Bank was executor in Mrs. How's will. Having qualified and the appropriate time for filing petition to determine heirship having arrived, the executor filed such a petition on November 2, 1961 (Prob.Code, § 1080). The will provided: 'FIFTH: I give, devise and bequeath all my property of every kind and nature, real, personal and mixed, and wheresoever situated and howsoever held, of which I may die seized or possessed, or in which my estate may have any interest, or over which I may have any power of disposition, to my husband, HAROLD W. HOW. In the event that my said husband shall predecease me, then I give, devise and bequeath one-half (1/2) thereof to my heirs-at-law and one-half (1/2) thereof to the heirs-at-law of my husband, HAROLD W. HOW, by right of representation.' Mrs. How died on October 12, 1960; her husband had predeceased her on September 16, 1960.

The executor's petition named as persons entitled to notice the following: Mrs. Eleanor Gray Perry, sister of Mrs. How; William W. Bodine, Jr., nephew of Mrs. How; Samuel T. Bodine, Nephew of Mrs. How; James F. Bodine, nephew of Mrs. How; Mrs. Jane B. Sniffen, niece of Mrs. How; and Ross W. Whistler, first cousin of Harold W. How. It prayed for a determination of the persons entitled to distribution of the estate. The hearing was set for November 20, 1961, on which date the court continued the matter to December 4, 1961, no request or demand for jury or deposit of jury fees having been previously made. On December 4, 1961, the five persons named in the petition as heirs of Louise W. How (Mrs. Eleanor Gray Perry, William W. Bodine, Jr., Samuel T. Bodine, James F. Bodine, Mrs. Jane B. Sniffen), and Ross W. Whistler who was named as a first cousin of the deceased husband, Harold W. How, had filed statements of their respective claims of interest. All of said claimants were represented by the same attorneys upon the hearing held on December 4, 1961. As the first step in this hearing the attorney for the executor stated: 'As I understand the provisions of Probate Code section 1081, ¹ this is the type of procedure or proceeding in which a jury trial is required unless all parties waive, and it is the executor's desire to proceed without a jury and I believe the other parties will stipulate to that.' The attorney representing the six claimants then stated: 'We so stipulate for the persons for whom we have filed a claim of interest, your Honor.'

The hearing then continued and evidence was introduced sufficient to satisfy the judge (Honorable Percy C. Heckendorf) that the five persons above named are the heirs of Mrs. How, but, although considerable time and effort were devoted to the matter, he found it not feasible to then rule upon the question of who were the heirs of the husband, Dr. How; so he rendered an 'Interlocutory Decree Determining Heirship' on December 28, 1961, wherein he declared the identity and rights of the persons entitled to share in one-half of the estate as heirs of Mrs. How, but continued the matter for further hearing on January 29, 1962, as to Dr. How's heirs. The interlocutory decree said, in part: 'The court reserves at this time, pending the introduction of further evidence, its findings as to the identity of the heirs at law of Harold W. How,' and it concluded as follows: '3. The hearing on the Petition for Determination of Heirship insofar as it pertains to the determination of the heirs at law of Harold W. How, deceased, is continued to Monday, January 29, 1962, at 10:00 a. m. before Department Number Three of the above entitled Court, Honorable Percy C. Heckendorf, Judge, presiding.'

On December 28, 1961, one Van Ness How Bates filed a statement claiming to be an heir of Harold W. How. The matter was continued from January 29 to March 27, 1962; between those dates three more claimants to the Harold W. How share of the estate filed statements of claim. Their attorneys made a motion for a continuance based upon the facts that the new claimants lived in the eastern part of the United States, that only recently they had learned of the pendency of said probate proceedings and had then immediately arranged for representation by counsel, but that it would be necessary for them to have further time in order properly to arrange for the presentation of their case and to bring from great distances necessary and material witnesses and to make available other essential evidence. This motion was granted and the matter was continued to July 17, 1962.

On June 15, 1962, pursuant to a stipulation entered into by (a) the attorneys for Ross Whistler, the only heir of Harold W. How known at the time of the hearing on December 4, 1961; (b) the attorneys for the new claimants, and (c) the attorney for the executor, a pre-trial conference was set for June 29, 1962. At that hearing the attorneys for the new claimants without giving any previous notice of motion or making any deposit of jury fees requested trial by jury, the motion was granted by Hon. W. Preston Butcher, judge then presiding, over objection of Ross Whistler's counsel and the clerk was directed to draw a panel therefor.

The petitioners for the writ of prohibition are the five heirs of Louise W. How whose rights were declared in the 'Interlocutory Decree' of December 28, 1961, and said Ross Whistler. Petitioners herein are all represented by the same attorneys, and were so represented at the hearing on December 4, 1961, and at the time of the signing of the stipulation for the pretrial conference.

In our opinion there are insuperable obstacles to recognizing a right to jury trial upon the portion of the case which relates to the heirs of Dr. How. We approach the problem first upon the basis that there now is no right to a jury trial regardless of any technical waiver through failure to make seasonal demand and deposit of jury fees.

Summarily stated, our line of reasoning is this. We here deal with a statutory proceeding in rem which is indivisible and hence there cannot be two separated decrees the interlocutory judgment made by Judge Heckendorf does not bind him or any other judge to whom the matter may be transferred; in legal effect it merely records his views as they existed on its date and severs the issues for trial, postponing the determination of the identity of heirs of Dr. How to a later date; but the proceeding must be concluded by Judge Heckendorf and he must make one decree disposing of the entire matter; the findings of a jury upon the Dr. How segment of the case cannot be imposed upon the judge or the objecting claimants, the situation being analogous to bringing in a second judge to go forward with a case previously partially heard by another judge; the belated claim of a right to jury trial does not lie in the mouths of claimants who appeared in the proceeding after entry of the interlocutory judgment; Judge Butcher exceeded his jurisdiction in granting their motion for a jury; as the record shows an existing intention of respondent court to proceed with the further hearing before a jury, the peremptory writ should be granted.

A proceeding for determination of heirship, like all other probate matters, is statutory and jurisdiction depends upon compliance with terms of the statute, primarily the Probate Code. Estate of Wise, 34 Cal.2d 376, 381, 210 P.2d 497, 500: "Probate proceedings being purely statutory, and therefore special in their nature, the superior court, although a court of general jurisdiction, is circumscribed in this class of proceedings by the provisions of the statute conferring such jurisdiction, and may not competently proceed in a manner essentially different from that provided. Smith v. Westerfield, 88 Cal. 374, 379, 26 P. 206." The res is 'the right of heirship and distribution' and upon that issue 'the decree is binding on the whole world' (34 Cal.2d 384, 210 P.2d 501). 'Such a proceeding is not an ordinary civil action, but a specialized proceeding in rem.' (34 Cal.2d 383, 210 P.2d 501.) 'So it has been said that such heirship 'decree [is] conclusive against all persons' as the 'basis for the decree of distribution which [is] to follow', In re Estate of Blythe, 110 Cal. 231, 234, 42 P. 643, 644; it settles 'the rights of all persons claiming as heirs of the decedent, whether or not they are named in the complaint or personally served with summons', Title and Document Restoration Company v. Kerrigan, 150 Cal. 289, 307, 88 P. 356, 359, 8 L.R.A., N.S., 682, 119 Am.St.Rep. 199, and whether or not they were 'individually named in [the] notice * * *'. In re Estate of Blythe, supra, 110 Cal. 231, 233, 42 P. 643; see, also, 11B Cal.Jur. sec. 1200, p. 671; sec. 1205, p. 676; sec. 1208, pp. 680-681. The decree is not one 'in personam in favor of one of the parties against...