Paley v. Superior Court In and For Los Angeles County

Decision Date02 December 1955
Citation137 Cal.App.2d 450,290 P.2d 617
CourtCalifornia Court of Appeals Court of Appeals
PartiesJacob (Jay) PALEY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, Bank of America National Trust and Savings Association, Executor of the Estate of Lillian Paley, Deceased, Real Party in Interest. Civ. 21272. Division 3, California

Wright, Wright, Green & Wright, S. Earl Wright, Loeb and Loeb, Herman F. Selvin, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Fox, Goldman & Kagon, Stanley E. Fox, Beverly Hills, Brady, Nossaman & Walker, Walter L. Nossaman, Joseph L. Wyatt, Jr., Los Angeles, for real party in interest.

ASHBURN, Justice pro tem.

This case involves certain aspects of the problem of the extent of survival after death of a testator's privilege against disclosure by his attorney of confidential communications made by the testator in connection with the preparation and execution of his will. Petitioner Jacob Paley seeks a writ of mandate directing the superior court to require his deceased wife's attorney, Stanley E. Fox, Esq., to answer certain questions upon deposition which the trial court held objectionable as calling for privileged matter, for that reason sustaining objections to said questions. If petitioner's ultimate position is sound mandamus is an appropriate remedy. Brown v. Superior Court, 34 Cal.2d 559, 561, 212 P.2d 878; Carnation Co. v. Superior Court, 96 Cal.App.2d 138, 141, 214 P.2d 552; Ahern v. Superior Court, 112 Cal.App.2d 27, 30, 245 P.2d 568.

It appears that petitioner and his wife, Lillian Paley, were married in 1906 and resided together in the State of Pennsylvania until 1936 when they moved to California, living in this state until the wife's death on January 2, 1954. She left a will dated December 5, 1952 which bears the signatures of Mr. Fox, his secretary and another employee of his firm as attesting witnesses. This will was admitted to probate and Bank of America National Trust and Savings Association was duly appointed and has qualified and is acting as executor thereof. The will makes various specific bequests and leaves the residue of the estate to certain specified beneficiaries, to the exclusion of petitioner. The instrument contains this language: "Third: It is my intention, hereby, to dispose of all property, real or personal, which I am entitled to dispose of by Will, whether said property be my separate property or the community property of my husband and myself."

On or about October 15, 1954 Mr. Paley brought an action against the executor in the superior court seeking declaratory relief. The complaint in paragraph V alleges the marriage and residences as above stated. Further that Mrs. Paley left a substantial amount of personalty which was at all times her separate property, standing in her own name; that it was acquired during marriage in Pennsylvania or with the proceeds of such acquisitions. Defendant's answer alleges that all real and personal property left by decedent was acquired during marriage by gift, bequest, devise or descent, or the rents, issues or profits thereof. Paragraph VI of the complaint alleges that Mr. Paley was at the time of his wife's death and now is the owner of considerable personal property which is his separate estate standing in his own name; that same was acquired partly before and partly after marriage while domiciled in Pennsyvania; that plaintiff has no personal property otherwise acquired. The answer avers that plaintiff acquired a substantial amount of personal property after marriage while domiciled outside the State of California, 'which would not have been the separate property of plaintiff if acquired while domiciled in this state,' the extent thereof being unknown to defendant. 1 The quoted language uncovers the major controversy between the parties. It points to section 201.5 Probate Code, which says: 'Upon the death of either husband or wife one-half of all personal property, wherever situated, heretofore or hereafter acquired after marriage by either husband or wife, or both, while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this State, shall belong to the surviving spouse; the other one-half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse, subject to the debts of the decedent and to administration and disposal under the provisions of Division III of this code.' 2 Paragraph VII of the complaint alleges an oral agreement between the spouses, made in California while resident here, to the effect that all property acquired by either of them or standing in his or her name was and should be separate property of the one acquiring the same or in whose name it might stand. This allegation is denied by defendant. The complaint then defines in paragraph IX the existing controversy and defendant by answer and cross-complaint gives a slightly different version of it. As appears from the pleadings and the briefs herein these are the questions in dispute. 1. Was there any community property of this marriage? 2. If so, was there an agreement transmuting it and any quasi-community property into separate property as alleged by plaintiff? 3. Was the personalty standing in Jacob Paley's name at time of Lillian's death quasi-community and, if so, did she have the right to make testamentary disposition of one-half of same under section 201.5 Probate Code? 4. Was the personal property standing in the wife's name at her death quasi-community, and, if so, does plaintiff succeed to one-half thereof under said section 201.5, notwithstanding her leaving same to others in her will?

In June 1955 plaintiff commenced the taking of the deposition of Mr. Fox under section 2021, subdivision 6, Code of Civil Procedure, upon the ground that he is the only witness who can establish certain facts material to the issue. Upon advice of counsel he relied upon an asserted privilege with respect to any conversations with Mrs. Paley concerning the preparation of her will and other professional matters. There have been two proceedings before the superior court seeking to compel answers. As a result of the first one the witness was ordered to answer certain questions and objection was sustained to one other. The deposition was resumed and Mr. Fox then testified that he acted for Mrs. Paley throughout the whole process of preparation and drafting of her will; that within a period of two years prior to execution of her will he had conversations with his client about the disposition of property by her will; that no third person was present at any of those conversations; that during the same period he had many conversations with her about other matters of a confidential nature; that they had conversations about the nature, extent, description or identification of property which she claimed to own or over which she had or claimed the right of testamentary disposition. Mr. Fox refused to answer the question to which objection had been sustained, namely: 'Q. Will you please state the dates involved, the places at which they were held, the persons present and the substance of what was said at any conversation or discussion you may ever have had with Mrs. Paley as to the nature, extent or testamentary disposition of her property?' The witness having been asked and having refused to answer certain additional questions, the matter was presented the second time to the court. That series of questions is typified by the following.

'Q. Did Mrs. Paley ever say to you, or in your presence and hearing at any time, in substance or effect, that there was no community property of the marriage between herself and Mr. Paley?

'Q. Did Mrs. Paley at any time ever say to you, or in your presence, or hearing, that all of the property which Mr. Paley had was his own separate property, in substance or effect?

'Q. Did Mrs. Paley ever say to you, or in your presence and hearing, in substance or effect, that she and Mr. Paley had years before had an understanding or agreement to the effect that his property would be his separate property and her property would be her separate property? * * *

'Q. Will you state, Mr. Fox, the substance of the conversations or discussions that you had with Mrs. Paley relating to the nature, extent, identification or disposition or proposed disposition of any property by her?'

The objections to all questions were sustained upon the grounds (1) that the will is not ambiguous and hence oral evidence not admissible or material and (2) that petitioner is a stranger to the will and the subject matter of the conversations is privileged as to him. Petitioner herein challenges both of these conclusions; respondent and the real party in interest stoutly assert that they reflect sound law.

The will on its face is not ambiguous. It declares an intention to dispose of all property over which testatrix has testamentary control. 'It is my intention, hereby, to dispose of all property, real or personal, which I am entitled to dispose of by Will'; the addition of the phrase 'whether said property be my separate property or the community property of my husband and myself' merely operates by way of description; it does not on its face narrow the scope of the declared and all-inclusive intention. But it is necessary to apply every will to the subject matter upon which it is to operate. To that end extrinsic evidence is always necessary. 57 Am.Jur. section 1041, page 676: 'A moment's reflection will show that in giving effect to any will, even the simplest and clearest, some extrinsic evidence must be admitted to identify the persons and property referred to in the will and to enable the court to apply the words of the will to the matters to...

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