Mannheim v. Superior Court

• Decision Date: 21 December 1970
• Citation: 478 P.2d 17,91 Cal.Rptr. 585,3 Cal.3d 678
• Court: California Supreme Court
• Parties: , 478 P.2d 17 Sid MANNHEIM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STATE of California, Real Party in Interest. L.A. 29776.

Page 585

91 Cal.Rptr. 585

3 Cal.3d 678, 478 P.2d 17

Sid MANNHEIM, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent STATE of California, Real Party in Interest.

L.A. 29776.

Supreme Court of California In Bank.

Dec. 21, 1970.

Rehearing Denied Jan. 20, 1971.

Sid Mannheim, in pro. per.

Edward J. Boessenecker, San Francisco, and Howard R. Benson, Oakland, as amici curiae on behalf of petitioner.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., and Ariel C. Hilton, Deputy Atty. Gen., for real party in interest.

SULLIVAN, Justice.

Petitioner Sid Mannheim seeks a writ of mandate to compel the probate court to enter a supplemental order distributing to his clients ¹ the unallocated portion of the estate of Janet Nieto, pursuant to section 228, as amended, of the Probate Code. ²

Janet Nieto died intestate in Los Angeles on March 19, 1968. Her estate is being administered by the public administrator. In December 1968 petitioner as attorney for the five heirs of decedent's predeceased husband filed a petition to determine heirship. In response to this petition, the probate court on May 29, 1969, entered its decree determining heirship (§ 1192) providing in substance as follows: (1) decedent left no surviving spouse, issue or descendants of issue; ³ (2) the entire estate consisted of property formerly held in joint tenancy by Mrs. Nieto and her husband; (3) petitioner's clients, the heirs of Mrs. Nieto's predeceased husband, were entitled to one-half of the estate. ⁴ No allocation was made of the remaining one-half, and that portion is the subject of the present litigation.

At the date of Mrs. Nieto's death and at the date of the above decree, section 228 provided that if the decedent left neither spouse nor issue, and the estate contained community property of decedent and a predeceased spouse, such property should go to the children of the predeceased spouse and their descendants, and if none, then one-half of the property should be distributed to specified heirs of the decedent and the other half to specified heirs of the predeceased spouse. ⁵ Section 230 provides that if there is no one to succeed to any of the above property, it descends to the 'next of kin of the decedent.' ⁶ If the decedent leaves no one to take any portion of the estate under the above statute, section 231 provides that the unclaimed property escheats to the state. Thus, since Mrs. Nieto left no known heirs, under then-existing law one-half of her estate was properly distributed to the heirs of her predeceased husband, and the remaining half should have been distributed to the State of California under section 1027, to be held for five years, during which it could be claimed by the 'unknown heirs' of the decedent. If none appeared, it would then permanently escheat to the state at the end of that period. (Prob. Code, § 1027; Code Civ.Proc. § 1441.)

However, in 1969, over a year after Mrs. Nieto's death, section 228 was amended (Stats.1969, ch. 856, § 1, effective November 10, 1969) to add thereto the following paragraph here in controversy: 'If any of the property subject to the provisions of this section would otherwise escheat to this state because there is no relative, including next of kin of the decedent or of his predeceased spouse, such property shall be distributed in accordance with the provisions of paragraph 2 of Section 296.4 of this code.'

Section 296.4 is part of the Uniform Simultaneous Death Act; paragraph 2, which was added in 1968, provides: 'If a portion of the estate which was the community property of the husband and wife should otherwise escheat to the state under this section and Sections 201, 228, and 231 because there is no relative, including next of kin, of one of the spouses to succeed to such portion of the estate, such portion * * * shall be distributed in equal shares to the children of the other spouse and to their descendants by right of representation, or if such spouse leaves no children, nor descendants of a deceased child, in equal shares to the parents of such other spouse * * * or if both are dead, in equal shares to the brothers and sisters of such other spouse and to their descendants by right of representation, or if such other spouse leaves neither parent, brother, sister, nor descendant of a predeceased brother or sister, such portion of the estate goes to the next of kin of such other spouse * * *.' The effect of the amendment is to prevent the escheat of any community property of a husband and wife who die simultaneously if either leave any heirs. By incorporating that distribution scheme into section 228, the Legislature provided the same treatment for community property of spouses who die at different times.

In December 1969, one month after the amendment to section 228 became effective, petitioner filed in the probate proceedings a 'Motion for Order Supplementing Prior Decree Determining Entitlement to Distribution of Estate.' He sought an order (1) that no portion of the estate escheat to the state and (2) that the remaining one-half of the estate be distributed to his clients. The motion was denied, as was a subsequent motion for reconsideration. Petitioner then sought a writ of mandate in the Court of Appeal to compel the trial court to enter the order previously refused. The Court of Appeal granted the alternative writ, but denied the peremptory writ, and we granted the petition for hearing.

We must first decide whether mandate is the appropriate remedy in this case. A writ of mandate 'may be issued * * * to compel the performance of an act which the law specially enjoins, * * *' (Code Civ.Proc. § 1085.) The writ must be issued where no 'plain, speedy, and adequate remedy' is otherwise available. (Code Civ.Proc. § 1086.) 'It is well settled that Mandamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way (citations).' (Hilmer v. Superior Court (1934) 220 Cal. 71, 73, 29 P.2d 175, 176.) (See Lissner v. Superior Court (1944) 23 Cal.2d 711, 715, 146 P.2d 232; Bales v. Superior Court (1942) 21 Cal.2d 17, 25, 129 P.2d 685.) Here there is no dispute concerning the facts. The only issue is whether, as a matter of law, the provisions of section 228, as amended, control the right of succession to Mrs. Nieto's estate. If they do, the probate court is under a legal duty to apply them, and it may be directed to perform that duty by writ of mandate. The absence of another adequate remedy was determined by the Court of Appeal when it granted the alternative writ. ⁷ (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845, 59 Cal.Rptr. 609, 428 P.2d 593; Erlich v. Superior Court (1965) 63 Cal.2d 551, 557, 47 Cal.Rptr. 473, 407 P.2d 649; Weber v. Superior Court (1960) 53 Cal.2d 403, 406, 2 Cal.Rptr. 9, 348 P.2d 572.)

We turn to the merits. Although the parties appear to assume that section 228, as amended, should be applied retroactively, we deem it necessary at the outset to dispose of that issue.

As has been mentioned, the amendment to section 228 incorporated by reference the distribution scheme of section 296.4. The act which amended section 296.4 expressly provided that the new provisions of that section 'shall apply to any portion of an estate which on the effective date of this act has not vested absolutely in the state or has not permanently escheated to the state, whether the decedent died before or after such date.' (Stats.1968, ch. 1407, § 4.) Accordingly, we are satisfied that the Legislature intended a retroactive application of section 296.4. The question which now confronts us is whether, in adopting the succession scheme of section 296.4 as a part of section 228, the Legislature meant to incorporate its retroactivity provision, as well.

We have been unable to find any legislative history bearing directly on this point. Therefore, we must turn to canons of statutory construction to aid us in the task of interpretation. One such rule of construction counsels that 'statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.' (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159, 161; see Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 195, 272 P.2d 757; see also, Civ.Code, §§ 3, 6; Code Civ.Proc. § 8.) Yet that canon expressly subordinates its effect to the most fundamental rule of construction, namely that a statute must be interpreted so as to effectuate legislative intent. (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89; Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) The supremacy of legislative intent over the rule of prospectivity has recently been reiterated in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, where this court said of the presumption of prospectivity: 'That rule of construction, however, is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.' (63 Cal.2d at p. 746, 48 Cal.Rptr. at p. 176, 408 P.2d at 952.)

When the Legislature amended section 228, it expressly fashioned its revision in reference to the provisions of section 296.4. It goes without saying, therefore, that it must have been fully aware of the latter section and that it must be deemed to have been conscious of the statutory provision for its retroactive application. In the absence of any indication to the contrary, we infer that the Legislature intended to make ...