Estate of Muller

• Decision Date: 04 December 1969
• Citation: 2 Cal.App.3d 259,82 Cal.Rptr. 531
• Parties: In the Matter of the ESTATE of Bessie MULLER, Deceased. William MULLER, Plaintiff and Appellant, v. Charles REAGH, As Administrator of the Estate of Bessie Muller, Deceased, Defendant and Respondent. Civ. 26394.
• Court: California Court of Appeals Court of Appeals

Page 531

82 Cal.Rptr. 531

2 Cal.App.3d 259

In the Matter of the ESTATE of Bessie MULLER, Deceased.

William MULLER, Plaintiff and Appellant, v. Charles REAGH, As Administrator of the Estate of Bessie Muller, Deceased, Defendant and Respondent.

Civ. 26394.

Court of Appeal, First District, Division 1, California.

Dec. 4, 1969.

William Muller, in suo jure.

Mack & James, San Francisco, for respondent.

SIMS, Associate Justice.

Appellant, the petitioner in two petitions in which he attacked the appointment of and sought the removal of respondent as the administrator of his mother's estate and the issuance of letters of administration to himself, has appealed from a 'Judgment On Verdict' which was entered upon a directed verdict of a jury denying him the relief sought in his petitions. The 'judgment' is appealable as an order refusing to remove a representative. (Prob.Code § 1240; Estate of Cuneo (1963) 214 Cal.App.2d 381, 383--384, 29 Cal.Rptr. 497.) ¹

The ultimate issue of whether the court erred in directing a verdict against the petitioner is governed by well settled rules. 'A directed verdict may be granted, when, disregarding conflicting evidence, and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party. (Citations.)' (Walters v. Bank of America (1937) 9 Cal.2d 46, 49, 69 P.2d 839, 840, 110 A.L.R. 1259; see also Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 120--121, 52 Cal.Rptr. 561, 416 P.2d 793; Bias v. Reed (1914) 169 Cal. 33, 38, 145 P. 516; Beck v. Kessler (1965) 235 Cal.App.2d 331, 335, 45 Cal.Rptr. 237.) Petitioner contends, however, that the trial court unwarrantedly restricted the issues and his proof, and that the judgment cannot stand.

Petitioner's contentions are presented by way of 888 'Specifications of Prejudicial Errors Occurring During the Trial (numbered 1 through 65 and 70 through 92), 55 'Prejudicial Errors Committed by the Court in the Exclusion of Evidence and Proof During the Testimony of (the Administrator)' numbered 1 through 10, and 10 (duplicated) through 54), and 22 'Arguments and Propositions', of which 20 were presented by way of petitioner's reply brief after his motion for leave to file an appellant's supplemental duplicated opening brief containing the same material was denied. ² His contentions may be properly narrowed down after a review of the pleadings and pretrial order, and the rulings of the court at the trial.

The first petition alleges that on October 21, 1963, respondent was 'unlawfully, irregularly and improperly' appointed administrator, that he gave bond and was issued letters of administration. The attack is predicated on the following specific allegations: that respondent 'is an utter stranger and discognated in any way to the decedent' and 'not even a creditor of said decedent'; that respondent sought the appointment 'for fraudulent purposes for his own advantage, gain, profit, benefit and opportunity to injure, harm, damage and prejudice' the petitioner, who is the son of the decedent. The burden of the petition is that petitioner is entitled to letters as one of the second class under section 422 of the Probate Code, ³ as opposed to the respondent who can only qualify under the tenth class. In reply the respondent admitted that he is the duly appoined, qualified, and acting administrator of the estate of the decedent, and that the respective classes of the parties under section 422 is as alleged.' As a further defense respondent alleged, 'All the issues raised (in) said petition have heretofore conclusively been determined adversely to petitioner in the above entitled action, civil number 22086 in the District Court of Appeal of the State of California, action number 537,032 and action number 552,769 in the files and records of the above-entitled court.'

The second petition, entitled 'Petition for Removal of General Administrator and Suspension of Powers Pending Hearing' sets forth the following grounds, '(1) Hostility and Inimicalness towards Estates and Heir. (2) Waste. (3) Failure to file inventory. (4) Attempted Fraud. (5) Attempted Waste. (6) Incompetency to Act.' This petition, after setting forth the names and nature of the parties, alleges that respondent from 1945 to January 29, 1963, when he filed the petition for letters, acted as attorney for himself and one Lelah Reber in litigation against petitioner and the decedent, and that he filed for letters in conspiracy with his attorneys of record in order 'to mulct and annihilate the estate of' the decedent by creating unwarranted, unnecessary and wasteful expenses and attorney's fees which would consume any estate that might be created by their efforts. Further allegations elaborate on this theory.

The petitioner next turns to the alleged hostility. The allegations include: 'That because of the continual and incessant pre-existing litigation prior to this probate instigation, between (respondent and his client), and your petitioner, hostility, animus and inimicalness of a colossus meassure, in fact immeasurable, has existed and prevailed between (respondent) and your petitioner * * * during all of said times, to wit, from the year 1945 to and including the present time * * *.' This hostility is elaborated on for several paragraphs.

Interspersed among conclusions concerning the respondent's inability and incompetency to serve are allegations concerning waste of the estate on the theory of the creation of unwarranted expenses; and direct allegations that the respondent failed to file an inventory of the property of the estate as required by law. ⁴

In his answer to this petition the respondent alleged, among other things, that on March 13, 1964 he secured an order extending the time within which to file an inventory until 30 days after final judgment in two pending civil actions involving the estate; and that the matters asserted had been adjudicated adversely to petitioner in prior proceedings.

In his pretrial statement petitioner stated his first petition was predicated on the provisions of section 450 of the Probate Code, ⁵ and his second petition upon the provisions of section 521 ⁶ and case law authority. The statement sets forth 49 statements consisting of fact, conclusions and principles of law which are jointly labeled 'Petitioner's Contentions', and 65 alleged 'Legal and Factual Issues.' The respondent set up the prior proceedings leading to his appointment, and the affirmance on appeal of the order appointing him over petitioner's objections.

The pretrial order recites: 'Prior to the filing of these petitions, and as a result of prior proceedings in this action, Findings of Fact and Conclusions of Law were made by Judge Raymond J. Arata and filed on September 18, 1963, wherein it was determined that the decedent died leaving an estate and that Charles Reagh is in all respects competent and a fit and proper person to serve as administrator of the estate. It was further determined that the petitioner, William Muller, is not a fit and proper person to be appointed administrator, and is incompetent to be appointed or serve as administrator.

'An appeal was taken from the judgment appointing the respondent as administrator in Civil Action No. 22086 in the District Court of Appeal of the State of California. The judgment was affirmed on appeal and has become final.' The court appropriately consolidated petitioner's contentions into the following: 'Briefly, the petitioner contends that the respondent should be removed as administrator on the grounds that respondent: 1. is guilty of fraudulent conduct; 2. has committed waste; 3. has conspired to defraud petitioner and to commit waste; 4. has an interest adverse to the estate; 5. is hostile to the estate and petitioner; 6. has failed and neglected to perform acts required of him as administrator in failing to file an inventory within ninety (90) days after his appointment.'

Defendant filed timely objections to and a request for corrections of the pretrial order. He attacked the matters first quoted above on the grounds that 'res judicata' could not be a defense in an action for removal of an administrator, and complained of the failure of the court to include all of the contentions set forth in his pretrial statement. There is no record of any action on these objections. ⁷ Petitioner also filed a 'Notice of Motion to Modify Pretrial Order' which embodied the same contentions. The record fails to reveal the disposition made of this motion. There was no merit to petitioner's objections or to his motion. (See fn. 7, above.) As is indicated below, the defense of res adjudicata was available to respondent in answer to some of the contentions raised by petitioner. An examination of petitioner's pretrial statement reflects that the court did not err in consolidating his contentions in the manner in which it did. If, in fact, the court overlooked some substantial issue buried amongst the multifarious and heterogeneous allegations in the petitioner's pretrial statement it was petitioner's duty to refer to that issue specifically in his objections.

Petitioner requested a jury trial and the pretrial conference order provided as follows: 'It is further ordered that the issue concerning res judicata is to be tried first before the Court sitting without a jury, and that immediately after the decision of that issue a jury is to (be) empaneled to try the remaining issues, if any.' ⁸

When the case was called for trial, after the disposition of some preliminary matters which are reviewed below, the court commenced the impanelment of a jury. Petitioner notes 30 (Nos. 11--40) specifications of prejudicial error which allegedly occurred during the impanelment of the jury. In view of the directed verdict, these alleged errors cannot affect the...