Schechtman's Estate, In re

• Decision Date: 02 August 1955
• Citation: 286 P.2d 345,45 Cal.2d 50
• Court: California Supreme Court
• Parties: In re ESTATE of Max L. SCHECHTMAN, a/k/a M. L. Schechtman, a/k/a Manuel Schechtman, Deceased. Harold S. STONE, as executor of the estate of Frances B. Schechtman, deceased, Petitioner and Appellant, v. Dr. Abraham SCHECHTMAN and Leo Schechtman, Contestant-Executors and Contestant-Respondents. L. A. 23018.

Page 345

286 P.2d 345

45 Cal.2d 50

In re ESTATE of Max L. SCHECHTMAN, a/k/a M. L. Schechtman, a/k/a Manuel

Schechtman, Deceased. Harold S. STONE, as executor of the estate of Frances B. Schechtman, deceased, Petitioner and Appellant, v. Dr. Abraham SCHECHTMAN and Leo Schechtman, Contestant-Executors and Contestant-Respondents.

L. A. 23018.

Supreme Court of California, In Bank.

Aug. 2, 1955.

Nathan L. Schoichet, Beverly Hills, for appellant.

Harry A. Franklin, Los Angeles, for respondents.

SHENK, Justice.

This is a purported appeal by the widow of Max L. Schechtman from an order refusing to compel the co-executors of his estate to inventory alleged additional assets of the estate.

Max L. Schechtman died in February, 1952, survived by his widow, Frances B. Schechtman, and three sons by his prior marriage, two of whom, Dr. Abraham Schechtman and Leo Schechtman, are coexecutors of his estate. A will executed in 1948 provided for the transfer of certain items of personal property to the widow and recognized her one-half interest in all community property. It provided that the other half interest was to be transferred to Abraham Schechtman and Leo Schechtman. In October 1952, after the will and an inventory and appraisement of the assets of the estate had been filed by the executors, the widow filed a petition seeking to compel the executors to inventory additional items as assets of the estate. Her petition was filed pursuant to section 613 of the Probate Code, which provides in part: 'Upon complaint made under oath by an executor, administrator, or other person interested in the estate of a decedent, that any person is suspected of having embezzled, concealed, smuggled or fraudulently disposed of any property of the decedent, or has in his possession or has knowledge of any deed, conveyance, bond, contract or other writing, which contains evidence of or tends to disclose the right, title, interest or claim of the decedent to any real or personal property, * * * the court or judge may cite the suspected person to appear before the court, and may examine him on oath upon the matter of such complaint. * * *' Section 614 provides means of enforcing rights established as provided in section 613, and section 615 permits a complainant to proceed in a similar manner against one with whom assets of an estate have been entrusted.

The widow alleged in her petition that in addition to the items inventoried the decedent owned interests in four other specific parcels of real property, then in the possession of the decedent's sons and their wives and the decedent's brother and his wife. She also asserted that the decedent owned interests in the proceeds derived from sales of nine other identified parcels of real property; that all of those transfers took place during her marriage to the decedent, and that the proceeds therefrom were presently in the hands of various members of the decedent's family and other persons known and unknown. Other items of property not identified were alleged to be in the possession of persons known and unknown and, within the knowledge of the executors, were alleged to be owned in part by the decedent. All of the foregoing interests of the decedent were claimed to be community property.

Pursuant to citations the executors and others appeared and a hearing was had on the petition. Based on findings of fact the court concluded that two bank accounts should be inventoried, but that there was insufficient evidence to show color of title in the decedent or his estate to warrant inclusion in the inventory of other properties as alleged in the petition. The order appealed from was accordingly entered.

The determining question first to be considered relates to the appealability of the order. A proceeding under sections 613, 614 and 615 of the Probate Code is in the nature of a bill of discovery to aid executors and others interested in the estate in locating and inventorying assets of an estate. Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29 L.R.A. 811; McCarthy v. Superior Court, 64 Cal.App.2d 468, 471, 149 P.2d 55. The petition in the present case was entitled 'Petition to Compel Executors to Inventory Additional Assets of Decedent's Estate.' Counsel for the petitioner asserted upon inquiry by the court that the proceeding was commenced pursuant to section 613 et seq. of the Probate Code, and the matter was treated as such throughout the hearing. The court, in its findings of fact, referred to the matter as 'discovery proceedings'. The power of the court in such a proceeding ends with the discovery of the property and the enforcement of the remedial provisions of the statute. Koerber v. Superior Court, 57 Cal.App. 31, 34, 206 P. 496. Jurisdiction to try a question of title is not invoked by a petition brought under section 613. The court in the exercise of its probate jurisdiction has the power to try a question of title only as between the estate and certain persons interested in the disposition of the estate, Central Bank v. Superior Court, Cal., 285 P.2d 906; Ex parte Casey, 71 Cal. 269, 12 P. 118; In re Estate of Escolle, 134 Cal.App. 473, 476, 25 P.2d 860, and even then such jurisdiction is not necessarily exclusive. Schlyen v. Schlyen, 43 Cal.2d 361, 374, 273 P.2d 897. In the present case the court recognized the limitations of its jurisdiction in probate, stating in its order for the inventory of the additional items of property that the inclusion thereof should be subject 'to the rights of any person to set up and have adjudicated in a proper proceeding and in a Court of competent jurisdiction any claim of title thereto or for the possession thereof.'

Appeals which may be taken from orders in probate proceedings are set forth in section 1240 of the Probate Code. The section does not expressly provide for an appeal from an order relating to the discovery of property to be inventoried. The courts have consistently held that appeals in probate matters are limited to those expressly provided by statute. In In re Ohm's Estate, 82 Cal. 160, at page 162, 22 P. 927, at page 928, the court stated that a matter then before it 'certainly is a 'probate matter.' * * * The constitution provides that 'the supreme court shall have appellate jurisdiction * * * in all such probate matters as may be provided by law.' Article 6, § 4. The only provisions of law, as to appeals in probate matters, are contained in the third subdivision of section 963 of the Code of Civil Procedure (Now in substance, section 1240 of the Probate Code), in which is to be found no provision for an appeal from such an order as that appealed from in this case.' To the same effect see In re Estate of Brady, 32 Cal.2d 478, 479, 196 P.2d 881; In re Walkerly, 94 Cal. 352, 353, 29 P. 719; In re Estate of Wood, 117 Cal.App.2d 132, 133, 254 P.2d 940; In re Estate of Durpham, 108 Cal.App.2d 148, 153, 238 P.2d 1057; In re Estate of Thompson, 61 Cal.App.2d 188, 142 P.2d 337; In re Estate and Guardianship of Morro, 36 Cal.App.2d 623, 627, 98 P.2d 552. More specifically it has been held that there is no right of appeal from an order made pursuant to the discovery provisions of the Probate Code. In re Estate of Olmstead, 216 Cal. 585, at page 587, 15 P.2d 495, at page 496 this court stated: 'This proceeding is difficult to classify under any known method of procedure. * * * If it be classified as an attempt to discover assets of the estate pursuant to section 615 of the Probate Code, no appeal is allowed from an order made pursuant to that section, its object being to place the executor or administrator in possession of such facts as would authorize a suit on the civil side of the court to restore to the estate the property thereof held by another.'

The widow asserts that the proceeding in the present case may properly beconstrued as one for instructions to the executors. Section 588 of the Probate Code provides that 'In all cases where no other or no different procedure is...