Mayer v. Willing

• Citation: 16 Cal.Rptr. 476,196 Cal.App.2d 379
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 October 1961
• Parties: , 94 A.L.R.2d 157 Horace MAYER, Committee of the Property of Edward Willis Mayer, an incompetent person, Plaintiff and Appellant, v. John Homer WILLING, as Executor of the Estate of Mona Willing, aka Minnie Mayer, aka Mona Mayer, and John Homer Willing, Defendants and Respondents. Civ. 25280.

Page 476

16 Cal.Rptr. 476

196 Cal.App.2d 379, 94 A.L.R.2d 157

Horace MAYER, Committee of the Property of Edward Willis Mayer, an incompetent person, Plaintiff and Appellant, v. John Homer WILLING, as Executor of the Estate of Mona Willing, aka Minnie Mayer, aka Mona Mayer, and John Homer Willing, Defendants and Respondents.

Civ. 25280.

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

Oct. 18, 1961.

Jacob Paull, Beverly Hills, for appellant.

Samuel J. Crawford, Jr., Santa Monica, Enright, Elliott & Betz, Joseph T. Enright, Los Angeles, for respondents.

FOX, Presiding Justice.

This is an action brought by a guardian of the estate of an incompetent against the executor of the guardian of the person of the incompetent for an accounting of monies paid by the plaintiff to the guardian of the person for the care of the incompetent. Defendant was named in his personal as well as his representative capacity. The guardians were appointed by the New York courts and are referred to as the 'committee of the property' and the 'committee of the person.' Plaintiff appeals from a judgment of dismissal.

The complaint alleged that in 1922, by order of the supreme court of the State of New York, Edward Mayer was declared incompetent. Plaintiff Horace Mayer, Edward's brother, was appointed committee of Edward's property. His stepmother, Minnie (Mayer) Willing, was appointed committee of his person. Minnie acted as such until her death, and Horace is still acting as committee of his property. Minnie died testate in California, a resident of Santa Monica, in 1958. Defendant John Willing, her surviving spouse, was named as executor in her will and has qualified as such. In 1941 the New York court ordered Horace to pay Minnie $6,500 per year for Edward's support. In 1951 the amount was raised to $8,000. The 1951 order remained in effect until Minnie's death. Pursuant to these orders, Horace paid Minnie $146,625 between March 1, 1946 and September 1, 1958, by checks payable to 'Minnie Mayer, as Committee of the Person of Edward Willis Mayer, an incompetent person.' It was further alleged that an unknown portion of these funds was applied by Minnie to her own benefit and that of defendant Willing, and that this fact was discovered in December of 1958. Judgment was sought (1) imposing a trust on the funds alleged to have been misappropriated, together with rents and profits; (2) requiring defendant to account; (3) requiring defendant to convey any property acquired with misapplied funds; and for various other relief. It is not alleged that either Horace or Minnie were qualified as guardian in this State.

Judgment was rendered in favor of defendant on three grounds: (1) Plainfiff lacked capacity to bring such an action; (2) Minnie (her estate) is immune from such an action; and (3) the superior court has no jurisdiction to hear the action.

The proper place to begin a discussion of the questions raised by the complaint is with section 1913 of the Code of Civil Procedure. It reads: 'The effect of a judicial record of a sister State is the same in this State as in the State where it was made, except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of a guardian or committee, ¹ or of an executor or administrator, does not extend beyond the jurisdiction of the Government under which he was invested with his authority.' The italicized portion of this statute is merely a codified expression of the common law rule. Estate of Conkey, 35 Cal.App.2d 581, 586, 96 P.2d 383; Lewis v. Adams, 70 Cal. 403, 408, 411, 11 P. 833. Canfield v. Scripps, 15 Cal.App.2d 642, 59 P.2d 1040, involving an executor, quotes from the opinion of Mr. Justice Story in Vaughan v. Northup, 15 Pet. 1, 40 U.S. 1, 10 L.Ed. 639, which states: 'Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other state; and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On the other hand the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of these assets according to the lex loci. Hence it has become an established doctrine that an administrator, appointed in one state, cannot, in his official capacity, sue for any debts due to his intestate in the courts of another state; and that he is not liable to be sued in that capacity in the Courts of the latter, by any creditor, for any debts due there by his intestate. The authorities to this effect are exceedingly numerous, both in England and America * * *.' 15 Cal.App.2d at pages 644-645, 59 P.2d at page 1041. Also cited in Canfield v. Scripps is Helme v. Buckelew, 229 N.Y. 363, 128 N.E. 216. In an opinion by Mr. Justice Cardozo, a distinction was made between the disability of a foreign representative to bring a local action in his representative capacity and his immunity from action in local courts. It was held that a statute purporting to dissolve both the immunity and the disability could not properly so do with respect to the immunity, for while 'comity, though it may enlarge their rights, cannot, unless it is also the comity of the domicile, enlarge their liabilities * * *.' 128 N.E. at page 219.

There are numerous authorities, within and without this jurisdiction, which deny executors and administrators the power to appear in that representative capacity in a court outside the appointive jurisdiction. McCully v. Cooper, 114 Cal. 258, 46 P. 82, 35 L.R.A. 492; Estate of Waits, 23 Cal.2d 676, 146 P.2d 5; Estate of Conkey, supra; Gilmore v. American Cent. Ins. Co., 67 Cal. 366, 7 P. 781--must have ancillary letters; Lewis v. Adams, supra. See also, Wallan v. Rankin, 9 Cir., 173 F.2d 488; Canfield v. Scripps, supra; Story, Conflict of Laws, § 513; Restatement, Conflicts, § 507. There appear, however, to be only two cases in this state which have dealt with the local authority of a guardian appointed in another jurisdiction, and neither dealt with the guardian's authority to...