Guardianship of Prieto's Estate, In re
| Decision Date | 22 June 1966 |
| Citation | 52 Cal.Rptr. 80,243 Cal.App.2d 79 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the GUARDIANSHIP OF the ESTATE of Frank PRIETO, III, a Minor. Civ. 7803. |
This is an appeal from an order, in response to a petition for instructions in a guardianship proceeding, directing payment of a 'Real Estate Broker's fee.' Appellants, Frank Prieto and Dora Joyce Prieto, are the guardians of the estate of a minor. Respondents, Ernest Dunlevie Associates and Eugene E. Therieau, are the petitioners who sought the order from which the appeal is taken.
Each side to the controversy, in its briefs, assert facts wholly unsupported by the record. Nevertheless, those concededly true are included in the following statement.
The minor, Frank Prieto, III, was the allottee of 120 acres of land held in trust for his use and benefit by the United States pursuant to the provisions of §§ 331 et seq. and 951 et seq., Title 25, United States Code. Respondents were active in effecting a lease of this and other adjacent land. Appellants agreed to participate; petitioned for and obtained authority to execute such a lease 'to Senci Corporation, a California Corporation' on terms and conditions set forth in a copy of the lease attached to their petition; and subsequently, on January 3, 1962, in response to a subsequent petition, obtained an 'Amended Order' which again authorized them to execute a lease to the same corporation and contained the further provision that 'petitioner Is authorized to pay its proportionate share of the real estate commission in the amount of Fifty Thousand ($50,000.00) Dollars, payable one-half to Ernest Dunlevie Associates and one-half to Eugene E. Therieau * * * Provided that Said lease is * * * approved by the Secretary of the Interior * * *.' (Italics ours.) The lease to Senci Corporation was not approved by the Secretary of the Interior. However, he indicated approval of a lease upon the same terms and conditions to 'SENCI, a Partnership, composed of HAST BUILDERS, a California Corporation, DATE PALM DEVELOPMENT COMPANY, a California Corporation, and HARAB DEVELOPMENT COMPANY, a California Corporation.' Thereupon appellants petitioned for and, on April 10, 1963, obtained an order authorizing them to execute such a lease to the partnership, but containing no provision for a real estate commission. Execution of this lease was approved by the Secretary on April 23, 1963.
In their brief, respondents refer to the substitution of lessees as a minor change in the lease. Nevertheless, the fact remains that the lease appellants originally were authorized to execute, which was to a corporation as lessee, never was executed, and the lease that was executed, pursuant to an independent order authorizing such, was to a partnership, as lessee.
On Jan. 22, 1964, Ernest Dunlevie Associates and Eugene E. Therieau instituted proceedings in the guardianship, by a document entitled 'PETITION FOR INSTRUCTIONS (Payment of Brokers' Fee Senci Lease)', to obtain an order directing Senci, a partnership, to pay to each of them on the anniversary date of the subject lease the sum of $593.20 for a total of five years. This petition referred to a prior order of the court, without identifying it by date, authorizing the guardians to execute a lease on the subject property; described the lease as that in which Senci, a partnership, was the lessee; and alleged that the order authorizing the guardians to enter into 'said lease' contained language--setting it forth in Haec verba--authorizing the guardians to pay the estate's proportionate share of the real estate commission to petitioners in five equal annual installments. The record before us establishes the allegation in this petition that the order authorizing the guardians to execute the lease To the partnership contained a further order authorizing payment of a 'real estate commission' is untrue. The order authorizing the paymont of a commission was part of the order authorizing execution of a lease To the corporation.
The petition for instructions did not contain any allegation that Ernest Dunlevie Associates and Eugene E. Therieau had been employed as brokers to obtain the subject lease; had rendered services in obtaining such a lease; or were licensed to act as brokers. At the hearing on this petition the guardians testified, in substance, they did not employ Ernest Dunlevie Associates or Eugene E. Therieau to act as brokers for them, nor did they agree orally or in writing to pay them a real estate commission in connection with the subject lease. It appears from other testimony that although the original proposal was to lease the property to Senci, a corporation, the substitution of a co-partnership consisting of three corporations subsequently was proposed for tax reasons. Regardless of the reason for the substitution the evidence establishes the Secretary of the Interior would not appove a lease to a corporation but would approve a lease to a partnership. There was no testimony from which it might be concluded the guardians employed Ernest Dunlevie Associates or Eugene E. Therieau to act as brokers; employed either of them in any capacity to effect execution of the lease; or promised to pay either of them a commission or a fee.
Following the hearing the court made the order appealed from which is entitled 'ORDER (Directing Payment of Broker's Fee, SENCI LEASE)', which referred to the petition as one requesting an order 'directing the payment of a Real Estate Broker's fee'; ordered the guardians to pay Ernest Dunlevie Associates and Eugene E. Therieau, each, the sum of $593.20 each year for five years commencing on the first anniversary date of the lease, and authorized Senci, a partnership, to deduct these sums from the yearly rentals due under the lease and pay the same directly to Ernest Dunlevie Associates and Eugene E. Therieau at the times designated.
The order must be reversed for the following reasons:
(1) There is no evidence that respondents were employed by the guardians or performed any services for the estate as a broker in obtaining the subject lease;
(2) There is no evidence that either of them was a licensed real estate broker during the time in question.
(3) It appears from respondents' brief on appeal that Therieau was an attorney-at-law and not a licensed real estate broker;
(4) The purported services for which Therieau seeks compensation were rendered as a broker and not as an attorney-at-law;
(5) Any employment of Therieau to render such services was illegal;
(6) Any employment of Ernest Dunlevie Associates as a broker involved the joint employment of Therieau and for this reason was illegal;
(7) The services rendered by Dunlevie Associates and Eugene E. Therieau in obtaining the subject lease were part of a single consideration which, because Therieau admittedly was not a licensed broker, was illegal; and
(8) That part of the order authorizing payment of the real estate commission from the yearly rentals due under the lease contravenes controlling provisions in the United States Code, as approval of such payment was not obtained from the Secretary of the Interior.
It would appear respondents rely entirely upon the order of January 3, 1962, authorizing execution of the lease to the corporation and payment by the estate of its proportionate share of the real estate commission payable to respondents, as proof of the fact they were entitled to such a commission. This order was ineffective for this purpose in that the authority thus conferred to pay a real estate commission was conditioned upon approval by the Secretary of the Interior of the lease therein referred to, which was the lease to the corporation. This lease never was approved. Furthermore, this order did not more than 'author...
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