King's Estate, In re

• Decision Date: 09 December 1953
• Citation: 121 Cal.App.2d 765,264 P.2d 586
• Court: California Court of Appeals Court of Appeals
• Parties: In re KING'S ESTATE. BREWER et al. v. KING. Civ. 19527.

Page 586

264 P.2d 586

121 Cal.App.2d 765

In re KING'S ESTATE BREWER et al. v. KING.

Civ. 19527.

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

Dec. 9, 1953.

Rehearing Denied Dec. 30, 1953.

Hearing Denied Feb. 3, 1954.

Prudence M. Thrift, Los Angeles, for appellant.

Danielson & St. Clair, Los Angeles, for respondents.

McCOMB, Justice.

Gladys King, individually and as administratrix with the will annexed of the estate of George W. King, appeals from the order allowing and settling the account of a deceased executor, Griffin W. Wilson, which was filed by the respondents herein.

Facts: The present appeal is one step in a long series of litigation that appellant commenced with the death of George W. King in December, 1941. In Re Estate of King, 63 Cal.App.2d 365, 146 P.2d 952, some of the facts concerning the relationship of appellant and decedent are set forth. Appellant and George W. King were married in Reno, Nevada, in September, 1938, after a somewhat quarrelsome trip. At that time decedent was 85 years of age and appellant 34.

By his will executed November 5, 1928, decedent gave all his estate to Griffin Walter Wilson and his wife or to the survivor. A codicil executed August 8, 1934, gave $1 to Lydia A. King, the testator's foster daughter, and two months after his marriage, on November 28, 1938, decedent executed another codicil republishing his former will and codicil, declaring that he had married Gladys King and that he was making no provision for his wife as he was transferring certain property into her name and his as joint tenants.

The wills and codicils were filed for probate, appellant filed a contest, a nonsuit was granted, and appellant unsuccessfully prosecuted an appeal therefrom. (See Estate of King, supra.)

The wife of Griffin W. Wilson predeceased him and he became entitled to the entire estate of George W. King except for the sum of $1 bequeathed to Lydia A. King, the foster daughter.

While the appeal of the will contest was pending, appellant, as special administratrix of this estate, filed on June 6, 1942, an action against Griffin W. Wilson and others by which she sought to recover for the estate certain described property. When the judgment in the will contest was affirmed on appeal, Griffin W. Wilson was substituted as plaintiff in the action and dismissed it. Gladys King, at about the same time made a motion to be made plaintiff in the action in her individual capacity, which motion was denied. She then filed a petition for a writ of review with the District Court of Appeal, questioning the jurisdiction of the trial court to make the substitution of Griffin W. Wilson. She alleged she had the right to file an action individually to establish her interest in the property in question, and she sought to have the order of the probate court set aside so that the property would be made subject to a lis pendens, while a suit was being prepared and filed for her. The District Court of Appeal denied such petition on September 8, 1944. On September 2, 1944, Gladys King filed an action to quiet title and for an accounting against Griffin W. Wilson and others in which she sought to recover for herself, individually, all the property which was included in the action filed by her as special administratrix. No summons was issued at the time the suit was filed. After demurrers to the complaint and to amended complaints were sustained, defendants filed an answer to the third amended complaint on June 7, 1945. No proceedings were taken to have the matter set for trial until two years later in June of 1947, at which time defendants made a motion for dismissal for failure to prosecute. Thereafter Gladys King made repeated attempts to postpone and continue the trial of the action, until finally on September 21, 1948, two days before the scheduled trial she voluntarily dismissed the action when her motion for a continuance was denied.

On June 30, 1945, Gladys King filed another action against Griffin W. Wilson and others to quiet title and for an accounting in which action she again sought to recover individually the same property. No summons was issued and served when the complaint was filed. Approximately three years later, in April, 1948, a demurrer was sustained to the second amended complaint without leave to amend. In November, 1948, the action of the lower court sustaining such demurrer was affirmed in King v. Wilson, 96 Cal.App.2d 212, 215 P.2d 50.

On June 6, 1946, Gladys King filed another action against Griffin W. Wilson as executor of the estate herein, on a rejected, amended claim of $6,000 for services as nurse, housekeeper and assistant to her husband from date of marriage to the date of death. No summons was issued on the filing of the complaint, and no summons was served until April of 1948. After a demurrer had been sustained to the complaint, the action was voluntarily dismissed by appellant on July 12, 1948.

On August 27, 1947, while the three actions last described were still pending, Gladys King filed another action to quiet title and for an accounting against Griffin W. Wilson and others by which she again sought to recover individually the identical property covered by the former actions. This action proceeded to trial on March 7, 1950, and after several days of trial upon the affirmative defenses set forth in the answer of defendants the court found that the action was barred by the statute of frauds and rendered judgment for defendants. Appellant prosecuted an appeal therefrom which was dismissed by the District Court of Appeal by a decision reported in King v. Wilson, 101 Cal.App.2d 242, 225 P.2d 270.

On March 23, 1951, an action was filed by Gladys King, individually and as administratrix with the will annexed of the estate of George W. King, deceased, against the estate of Griffin W. Wilson and others by which in separate counts she sought to recover individually and as administratrix all the property covered by the former actions. After the sustaining of a demurrer without leave to amend as to the action by her as an individual, the cause is now pending by her as administratrix and is awaiting trial.

Lis pendens were filed in the above actions which have resulted in clouding title to such property of Griffin W. Wilson, his estate and the numerous other defendants practically continuously from June, 1942, to date.

After the death of Griffin W. Wilson on June 8, 1950, Gladys King, as the surviving spouse of decedent George W. King, was appointed administratrix with the will annexed of the estate of George W. King.

Joseph E. Brewer and Daniel Carmichael, as executors of the last will and testament of Griffin W. Wilson, filed an accounting of said deceased executor under section 932 of the Probate Code. In said accounting it was alleged, and the file in the proceeding corroborates, that the only assets of the estate of George W. King consisted of a pile of lumber appraised at $200 and a lot being purchased by decedent on a contract of sale. Griffin W. Wilson, as executor, filed a return of sale of said property but the return of sale was ordered off calendar because Gladys King had clouded title to the property through litigation. Thereafter a petition for an order approving sale of the personal property was filed, but the matter was again placed off calendar upon the objection of appellant Gladys King to the approval of such sale. Thereafter another return of sale of personal property was filed to which Gladys King again objected, stating in writing that she was the owner of the real property, entitled to the exclusive possession thereof as a result of the purchase of the lot, and further stated she had acquired the right to the personal property and would not permit any one to enter on the real property to remove such personal property. Gladys King also filed in this proceeding a notice of forfeiture, stating she had acquired the real property which decedent was purchasing under such contract of sale and she was thereupon declaring a forfeiture of all rights of the estate of George W. King therein. As a result of such actions Griffin W. Wilson, executor of the estate, never came into possession of any property of decedent and consequently on the accounting of said deceased executor there was no property for which to account.

Appellant, as administratrix with the will annexed of George W. King and also individually filed objections to the account of the deceased executor, alleging she was an heir under the will of George W. King, that as special administratrix of the estate she had commenced an action in 1942 against Griffin W. Wilson and others seeking to recover certain real property and for an accounting of rents, profits and issues therefrom, and that Griffin W. Wilson, while he was the only acting executor of the estate, caused the action to be dismissed.

Respondents served upon appellant a notice of motion to strike the aforesaid objections. After hearing upon the motion of respondents the probate judge, The Honorable Victor Hansen, made an order striking the objections to the account of the deceased executor. Thereupon Judge Condee approved the account of said deceased executor. Appellant appeals from this order.

Questions: First: Was Gladys King, individually, a person interested in decedent's estate?

No. Gladys King claims that she is a person interested in decedent's estate, for 'she states that she is an heir of the estate.' This assertion is a mere allegation of a conclusion of law and is contrary to the facts which appear in the record. Decedent's second codicil ¹ expressly provided that decedent was not making any provision for his wife (appellant) because he was transferring to her certain specified property. Therefore she is obviously not a devisee under decedent's will and not interested as such in his estate. She is not entitled to maintain this appeal individually.

There is likewise no merit in appellant's...