Graham v. Bank of Cal. Nat. Ass'n

• Decision Date: 29 November 1961
• Court: California Court of Appeals Court of Appeals
• Parties: Richard W. GRAHAM, as Administrator with the Will Annexed of the Estate of Adelaide L. Trull, Deceased, Plaintiff and Appellant, v. BANK OF CALIFORNIA NATIONAL ASSOCIATION, Individually and as Trustee under the Will of Charles B. Trull, Deceased, Defendant and Respondent. Shriners Hospitals for Crippled Children, Intervenor and Respondent. Civ. 19789.

Page 279

17 Cal.Rptr. 279

197 Cal.App.2d 438

Richard W. GRAHAM, as Administrator with the Will Annexed of the Estate of Adelaide L. Trull, Deceased, Plaintiff and Appellant, v. BANK OF CALIFORNIA NATIONAL ASSOCIATION, Individually and as Trustee under the Will of Charles B. Trull, Deceased, Defendant and Respondent Shriners Hospitals for Crippled Children, Intervenor and Respondent.

Civ. 19789.

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

Nov. 29, 1961

Hearing Denied Jan. 24, 1962.

Koster & Kohlmeier, Richard W. Graham, San Francisco, for appellant.

Pillsbury, Madison & Sutro, G. H. Eckhardt, Jr., M. D. L. Fuller, Jr., San Francisco, for respondent The Bank of California Nat. Ass'n.

J. Clark Berson, Simeon E. Sheffey, San Francisco, for intervenor and respondent Shriners Hospitals for Crippled Children.

SHOEMAKER, Justice.

This is an appeal by plaintiff from a summary judgment granted in favor of defendant bank and intervenor hospital. Plaintiff Richard W. Graham, as administrator with the will annexed of the estate of Adelaide L. Trull, brought this action to recover possession and control of certain real and personal property held in trust by defendant Bank of California National Association. Leave to intervene was subsequently granted to the residual beneficiary of the trust, Shriners Hospitals for Crippled Children.

The record shows the following undisputed facts. Adelaide and Charles Trull were married in 1913. At the time she had a son, John Biller, by a previous marriage. Adelaide died in 1946, and left a holographic will leaving her one-half of the community property of herself and Charles to her son John. Although John had this will shortly after its execution, he did nothing about it and in 1951 Charles died. In the meantime, Charles, thinking his wife had died intestate, did not proceed with any probate as all their property was community and stood in his name. He made his will in which he took care of John and his wife, and set up a testamentary trust of all of his property, which provided that John and the testator's sister were to receive certain income from the trust until their death, at which time the Shriners Hospitals was to receive the trust estate. This will of Charles Trull was regularly probated and shortly after the commencement of probate proceedings John produced his mother's will and showed it to several bank officials and the attorney for the estate, all of whom advised him to seek independent counsel as to his rights and what action he should take, but so far as is known, all he did was to deposit the will with the county clerk in San Francisco on February 7, 1951.

At the time of the disclosure of the will to the attorney for the estate, John expressed his satisfaction with things as they were under his stepfather's will, and that he did not propose taking any action. In due course a decree of determination of heirship, a decree of partial distribution, and a final decree of distribution, were entered in Charles Trull's estate, in accordance with the terms of the will; John accepted the benefits of the trust and up to the time of his death in 1957 had received some $34,000 from the estate.

On April 1, 1959, the will of Adelaide Trull was offered for probate. This was two years following John's death, eight years after the death of Charles, and thirteen years after the death of Adelaide. The proceedings were commenced at the instance of Mildro Biller, the widow of John.

On August 7, 1959, this action was commenced and in due course the present motion for summary judgment on the grounds that the action was barred by the statute of limitations, laches, estoppel, and election, was successfully interposed.

The granting of summary judgment may be upheld only where the affidavits of the party moving for such judgment state facts which, if proved, would be sufficient to sustain a judgment in his favor, and the affidavits of the opposing party present no triable issue of fact. (Mansfield v. Kaiser (1959) 176 Cal.App.2d 632, 636, 1 Cal.Rptr. 555.) Although the appellate court's scope of review is thus strictly limited, the affidavits in the case at bar clearly show that appellant's action is barred by the statute of limitations and the summary judgment must be affirmed.

This action is brought under Probate Code, section 573, to recover possession and control of assets belonging to the estate. The statute of limitations applicable to an action brought to recover real property or the rents or profits thereof is five years. (Code Civ.Proc. §§ 318, 319.) A three-year limitation applies to actions for the recovery of personal property (Code Civ.Proc. § 338, subd. 3) and a four-year limitation applies to any action not otherwise provided for (Code Civ.Proc. § 343.)

Appellant contends, however, that no statute of limitations can begin to run until a cause of action has accrued, and argues that since he, as administrator, could not have maintained the present action upon an unprobated will, no cause of action 'accrued' until the will was offered for probate. Appellant urges that the delay of thirteen years in offering the will for probate is not a bar, since there is no statute of limitations in California on the submission of a will for probate. In support of this proposition, appellant cites Graybiel v. Burke (1954) 124 Cal.App.2d 255, 268 P.2d 551. The Graybiel case, far from sustaining appellant's position, clearly reveals the fallacy of appellant's reasoning. In that case, the decedent, William Stewart, died in 1939, survived by his wife and three daughters. No administration of his estate was had until 1952, when plaintiff Graybiel was appointed special administrator. Just prior to Graybiel's appointment, defendant Burke obtained from decedent's widow a deed to certain real property which had been owned by the decedent. Graybiel was then appointed administrator and obtained an injunction restraining defendant from cutting or removing timber on this property. On appeal from the granting of the injunction, appellant asserted that the action was barred by the statute of limitations, since he had entered onto the land prior to the appointment of respondent as administrator. The court stated the rule that proceedings for the probate of a will or for letters of administration are not subject to any statute of limitations. However, the court then went on to point out that immediately upon a decedent's death title to all his property, both real and personal, passes to the person to whom it is devised or bequeathed by his last will. (Prob.Code, § 300.) Since the statute of limitations may certainly run against this heir or devisee, the administrator, when subsequently appointed, may be disseized and have no title to stand upon. The court stated, at page 263, 268 P.2d at page 556: "There is no question but that the statute of limitations will run against the administrator, and the heirs, or any holder of legal title, but there must be an adverse possessor to start the statute running. There is not a case cited that holds otherwise. The case of Tynan v. Walker, 35 Cal. 634 , cited by defendants' counsel, has a lot of...