Buchman's Estate, In re

• Citation: 123 Cal.App.2d 546,267 P.2d 73
• Court: California Court of Appeals
• Decision Date: 26 February 1954
• Parties: , 47 A.L.R.2d 291 In re BUCHMAN'S ESTATE. MORSE v. BUCHMAN. Civ. 19775.

Page 73

267 P.2d 73

123 Cal.App.2d 546, 47 A.L.R.2d 291

In re BUCHMAN'S ESTATE MORSE v. BUCHMAN.

Civ. 19775.

District Court of Appeal, Second District, Division 3, California.

Feb. 26, 1954.

Rehearing Denied March 15, 1954.

Hearing Denied April 21, 1954.

Morris Lavine, Los Angeles, for appellant.

Jerry Giesler, Beverly Hills, and George I. Devor, Los Angeles, for respondent.

VALLEE, Justice.

Appeal from an order of the probate court revoking letters testamentary and removing an executor.

Harry G. Buchman died testate on September 4, 1951. He named appellant Hamlin K. Buchman, his brother, exector of his will. The will left three-fourths of the estate to appellant, and one-fourth to Claire Buchman, his wife, from whom he was separated. The will was admitted to probate and an order made that letters testamentary issue to appellant on his giving a surety bond of $75,000 or a personal bond of $150,000. Letters testamentary issued to appellant on October 18, 1951. The inventory was filed May 12, 1952.

On January 26, 1953, Claire Morse, formerly Claire Buchman, filed a petition praying that a citation issue commanding appellant to show cause why, among other things, the letters testamentary issued to him should not be revoked and he should not be removed as executor. The petition averred, as one ground for appellant's removal, that he had not returned an inventory within three months after the date of his appointment. It did not allege that appellant was so mentally deranged as to be incompetent to act as executor.

On January 26, 1953, a citation issued commanding appellant to appear on February 13, 1953, and show cause why the letters testamentary should not be revoked and he should not be removed as executor. The citation was served on appellant's attorneys, but not on him personally as required by section 1207 of the Probate Code. However, he filed an answer to the petition and citation in which he averred that Claire Morse is not a person interested in the estate because of a property settlement agreement she had entered into with decedent and facts showing reasonable cause why the inventory had not been filed within three months after his appointment, one fact being that the appraisal was not completed by the appraiser until May 12, 1952, on which date it was filed.

The matter came on for hearing on March 11, 1953. Appellant was present, represented by counsel. A conference was immediately had in the judge's chambers between the judge and counsel for the petitioner and for appellant. The conference was not reported. As will appear hereafter, the attorney for appellant evidently told the judge that appellant had been having some treatments for a nervous disorder. When the judge returned to the bench, considerable discussion took place between the court and counsel with respect to other matters in the estate that were on the calendar that day. As the noon recess was about to be taken, the judge stated he had received some information under section 521 of the Probate Code which he could not ignore; that he felt it was his duty to investigate; and that on resuming the hearing in the afternoon, he would 'go into some of these matters concerning the present status of the executor and any treatment that he is undergoing and so on.'

On resumption of the hearing in the afternoon, appellant addressed the court stating he was not represented by counsel. Counsel for the petitioner stated the record showed that a firm of attorneys represented appellant. Appellant declared that in view of what had transpired that morning, he had asked his attorney, who attended the conference in the judge's chambers, how the court had found out that he (appellant) had been to a physician; and the attorney had said he had given that information to the judge. He stated that during the noon recess he had attempted to contact other attorneys, among them, Mr. Dee Holder. The judge interrupted, and said: '[D]o you think perhaps because of--in order to expedite the matter, would you like to resign and then your rights could be completely protected and we could go about it in that way? We could consider your suggestions as to a suitable corporate in any matter of this kind and anything of this kind could be avoided without any suggestion one way or the other, except that you feel a little nervous now.' The following then occurred:

'Mr. Buchman [appellant, the executor]: Your Honor, I feel a little bit nervous because I am taken by surprise. I feel a little bit nervous too because I appear in court not feeling that I am represented by counsel, which is the constitutional right of every citizen.

'The Court: You don't feel that you want to resign at this time?

'Mr. Buchman: No, your Honor. My brother, Harry G. Buchman, a man that I financed many years ago, had every confidence that I was capable of acting as executor and he so appointed me, not only in one will but in three or four wills. * * *

'The Court: I would suggest that the simplest way would be for you as executor to resign. Certainly you would be heard and I think you perhaps could be more effective in that position.

'Mr. Buchman: No, your Honor, I will not resign. I will not resign. I won't resign in the face of that accusation, which I think he has taken advantage of, any more than I would----

'The Court: What accusation?

'Mr. Buchman: Any more than----

'The Court: Just a moment. Which accusation is that you are talking about?

'Mr. Buchman: What about the information related to the court without my knowledge?

'The Court: There is no information related to the court except what is in the pleadings here. * * *

'Mr. Buchman: * * * Now, I won't resign on any facts of this nature at this time any more than I would resign on any embarrassment on the facts in 1941.

'The Court: Of course, I am suggesting that if you did want to resign, and there might be many reasons why you would want to resign, it would be without any implication whatsoever.

'Mr. Buchman: No, your Honor, I feel I should have a chance to have counsel represent me. * * *

'The Court: Well, I tell you there is a way out. You have an Achilles heel in that you didn't file an inventory within 90 days. That is within the discretion of the court to consider that the failure of this obligation or duty would be a cause for removing you. I have had a chance to observe you here. I have had a chance to observe you here this morning in the corner. Oh, you may have a reason for it----

'Mr. Buchman: Well, I don't want my photograph taken, your Honor. I don't want my photograph taken. But I will submit to any test, your Honor, that is requested in a matter of this kind, skillful and competent examination, and I will submit myself to examination before distinguished people, distinguished physicians, your Honor.'

Appellant then addressed the court at great length, following which the judge asked him whether he had consulted a neurologist recently, to which he replied that he would have no hesitancy about going into the judge's chambers. The judge then asked him if he would answer questions on the record if he was into chambers, to which he replied that he would. The judge and appellant then retired to the judge's chambers without the presence of counsel. A reporter was present. Appellant was not sworn. The judge asked him whether he had had a recent consultation with a neurologist. He said he had. The judge asked him who was his neurologist. Without answering the question, appellant made a long statement to the judge, some of it relating to the estate, most of it not. The judge again asked him if he did not want to resign. He said 'No,' that in the first place he wanted to be represented by counsel and he would be examined by any physician appointed by the court. The judge then said: 'Of course, it is not entirely a matter of medical testimony. I have the responsibility, if I think a person is emotionally incompetent to handle the matter I really have to get an executive that can.' Appellant replied: 'Emotionally--I am not emotional in the operation of my property.'

The judge resumed the bench and Mr. Holder appeared. The judge told Mr. Holder, among other things, that the attorney for appellant had told him in chambers that morning that appellant 'had been having some treatments for a nervous disorder'; that in open court he had asked appellant about 'the neurological treatment,' and he had said he preferred to talk in chambers; that in chambers appellant had 'conceded' there had been treatments; that he suggested other reasons for it, did not care to give the name of the doctor, but would submit to any doctor the court might appoint; and 'There is another technical cause set forth in the petition for removal with which you are acquainted, that is the failure to file inventory within 90 days, which has been a means by which the court if it wants to, can have a technical reason for removal, that is rather difficult and almost impossible to meet. [Italics added.] * * * I have contacted Dr. Edwin E. McNeil, M.D., who is a neurologist and a phychiatrist, and I have arranged an appointment at two o'clock tomorrow for Mr. Buchman to go there and consult with the doctor, and the doctor will render his written report to me.' Appellant stated he would prefer not to have it in the hands of just one person. The judge asked Mr. Holder to advise appellant to wait until Dr. McNeil's report was in. Mr. Holder stated that appellant could have examinations by other doctors which the judge would be willing to consider. The judge, in part, replied: 'Oh, yes, if I am willing to prolong the hearing. I don't know. I [sic] would be within the court's control, but I certainly want to be fair.' Mr. Holder then said he wanted to get his status clear; he understood appellant was then represented by counsel. The judge replied: 'As executor or administrator. I think this goes to personal privilege. I think when you are being removed for causes * * *...