Budde v. Superior Court in and for San Francisco County

• Citation: 97 Cal.App.2d 615,218 P.2d 103
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 May 1950
• Parties: . Civ. 14527. District Court of Appeal, First District, Division 2, California

Page 103

218 P.2d 103

97 Cal.App.2d 615

BUDDE et al. v. SUPERIOR COURT IN AND FOR SAN FRANCISCO COUNTY et al.

Civ. 14527.

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

May 18, 1950.

Hearing Denied July 13, 1950.

Doyle & Clecak, San Francisco, for petitioners.

Walter Carpeneti, John D. Costello, San Francisco, for respondents.

J. Joseph Sullivan, San Francisco, for Albert F. Budde, real party in interest.

GOODELL, Justice.

The petition herein shows that on February 17, 1950, Louisa A. Budde filed in the Superior Court her petition for appointment as guardian of the person and estate of Henry F. Budde, an alleged incompetent person. The hearing was set for March 2 at 2 p. m. and on the morning of that day a petition was filed therein by Albert F. Budde for the appointment of himself as such guardian. On March 10 the present petitioners, Henry F. Budde and his son Fred J. Budde, filed therein written opposition to both petitions, and demanded a trial by jury of the issues of fact raised by such opposition. There were several continuances of the hearing but it was finally set for March 22. On the 21st the Judge expressed to counsel his intention to proceed on the 22nd with the hearing without a jury, which precipated the filing of this proceeding to prohibit him from doing so.

The sole question presented is whether on an application for an adjudication of incompetency and the appointment of a guardian, a jury trial may be had as a matter of right, if demanded.

Probate Code, § 1461 reads in part as follows: 'Any relative or friend may file a verified petition alleging that a person is insane or incompetent, and setting forth the names and residences, so far as they are known to the petitioner, of the relatives of the alleged insane or incompetent person within the second degree residing in this State; * * * notice of the nature of the proceedings and of the time and place of the hearing * * * shall be mailed at least five (5) days before such hearing date to each of such relatives * * *. Any relative or friend of the alleged insane or incompetent person may appear and oppose the petition. * * *' (Emphasis added.) That part of the section which we have emphasized was added by amendment seven years ago, Stats. 1943, p. 2005.

Section 1461 is silent respecting a jury trial of the issue raised by the appearance and opposition.

Section 1230, Prob. Code, formerly §§ 1716-1717 Code Civ. Proc., reads: 'All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions. The party affirming is plaintiff, and the one denying or avoiding is defendant. When a party is entitled to a trial by jury and a jury is demanded, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice, must settle and frame the issues to be tried. If no jury is demanded, the court must try the issues joined, and sign and file its decision in writing, as provided in civil actions. * * *'

Section 1230 fails to specify the instances in which a jury trial may be had in probate.

Petitioners contend that under the 1943 amendment to § 1461 an issue of fact as to the alleged incompetency is raised by a written appearance and opposition and that such issue is triable by jury, if demanded.

Respondents contend that a probate matter is triable by jury only when the statute expressly so provides and they point to five sections of the Probate Code which do so provide, namely, §§ 371 and 382 (will contests before and after probate); § 928 (contests over allowed claims); § 1081 (determination of heirship), and, particularly, § 1471 (proceedings for restoration to capacity.)

Perhaps the strongest argument that can be made against a jury trial in an incompetency hearing arises from the fact that § 1461, on the one hand, is silent as to a jury in an incompetency adjudication hearing, while § 1471, on the other, requires that in a restoration to capacity proceeding a jury trial must be given if requested. See In re Bundy, 44 Cal.App. 466, 473, 186 P. 811.

Respondents point to In re Estate of Dolbeer, 153 Cal. 652, 657, 96 P. 266, 268, 15 Ann.Cas. 207, where the court said: 'Only in those probate proceedings where the statute expressly confers a right to a trial by jury does the right exist [citations].'

That statement was probably not intended to be as broad as it sounds since it might be taken to limit the right to jury trial to proceedings arising under such sections as 371, 382, 928, 1081 and 1471, which within their four corners 'expressly' confer the right. A review of the authorities, however, shows that the right has been extended well beyond such specific instances. In re Estate of Bundy, supra, a very well considered case, clears this up in the following statement at pages 469-470 of 44 Cal.App., at page 813 of 186 P.: 'The section just quoted provides for three distinct proceedings, to wit: (a) The filing of written findings in court cases; (b) trial by jury; and (c) a motion for new trial; and it implies a fourth, (d) the necessity for written issues in the cases to which it relates. There are three general classes of probate proceedings in this state with reference to the right of trial by jury. In the first class are those in which express provision is made for jury trials, such as the contest of a will before probate, the contest of a will after probate, and proceedings under section 1766, Code of Civil Procedure, for the restoration to competency of a person theretofore adjudged to be incompetent. See sections 1312, 1330, and 1766, Code Civ.Proc. In the second class are all those cases wherein a jury may be demanded under sections 1716 and 1717, above quoted. These are the cases in which written issues must be framed and in which a party can move for a new trial, and in which, if tried before the court, written findings of fact must be filed. An example of this class is the case of a petition for partial distribution. In re Estate of Baird, 173 Cal. 622, 160 P. 1078. In the third and largest class are embraced all those matters in the trial of which a party has not the right to demand a jury, such as settlement of accounts, family allowances and exemptions, admeasurement of homesteads, etc.'

The problem of the right to a jury trial has been before the courts many times in various phases of probate procedure other than incompetency proceedings, including contests over the settlement of accounts; those respecting heirship, and in those arising on partial and final distribution. It has arisen in an incidental way in disputes over the right to move for a new trial in probate contests because, as was said in Re Estate of Baird, 173 Cal. 617, 621-622, 160 P. 1078, 1080; 'The provisions relating to the right to move for a new trial and those upon the right to a trial by jury, under these sections, are similar; the two propositions are cognate and are governed by the same general principles.' See § 1231, Prob. Code, also In re Estate of Perkins, 21 Cal.2d 561, 134 P.2d 231, infra.

In all these cases the courts have resorted to the test, Whether a triable issue of fact was presented.

In re Estate of Moore, 1887, 72 Cal. 335, 340, 13 P. 880, 883, the contest was over an administrator's account. An heir filed numerous objections and demanded a jury, which the court allowed, and special issues were framed. It was held that a jury to try such issues was not a matter of right but merely advisory. In so holding, however, the court used this language which is interesting in view of the present problem: 'We think the courts would have little difficulty in conforming the operation of these sections [ §§ 1716-1717, Code Civ.Proc.] to those cases in which the Code has expressly authorized issues of fact to be framed. Without such a provision under the decisions, parties to a contest in the probate court would never be entitled to a jury trial.' (Emphasis added.)

Estate of Sanderson, 1887, 74 Cal. 199, 208, 15 P. 753, 757, involved a contest of the account of an executor who claimed the right to a new trial of the contest. The court held that the parties were not entitled to move for a new trial, drawing on Estate of Moore, supra, as a precedent. In doing so the court said: 'There may be a manifest propriety in requiring, at the request of a party, issues of fact such as ordinarily arise in the contest of the probate of a will (was the testator of sound mind? was he subjected to undue influence?) to be tried by a jury. But the proceeding in probate for the settlement of an account is sui generis, bearing but a distant and incomplete analogy to the procedure for an accounting in equity.' (Emphasis added.) Obviously the question whether a person is incompetent or not is the same type of issue as those used above as illustrations by Justice McKinstry. Thus the 'manifest propriety' of a jury trial in such a case as this was recognized by the Supreme Court over sixty years ago, although, it must be conceded, it was only by way of a dictum.

The general question was fully discussed in Carter v. Waste, 1910, 159 Cal. 23, 112 P. 727, where the Judge was mandated to settle, allow and sign a statement on motion for new trial after a contest on final distribution. The court held that the right to move for a new trial existed because an issue of fact had been raised and tried. 159 Cal. at pages 27-28 112 P. at page 729 the court said: 'We are satisfied that it must be taken as established in this state that, under our law as it now exists, a motion for a new trial of any issue of fact actually made and determined in any proceeding in probate will lie when the law expressly authorizes issues of fact to be framed in such proceeding, and that provisions authorizing written objections on the part of persons interested in the estate and providing for the hearing and determination of those objections do expressly authorize...