Woodring v. Basso

• Decision Date: 08 September 1961
• Citation: 195 Cal.App.2d 459,15 Cal.Rptr. 805
• Court: California Court of Appeals Court of Appeals
• Parties: Sally Lou Doyle WOODRING, Plaintiff and Appellant, v. Evelyn Doyle BASSO, also known as Evelyn Doyle Hiatt; Lucy Doyle Hadaway; Zelma Doyle, also known as Tessie Doyle; Meldrum Doyle; Edward R. Doyle; Walter J. Doyle, also known as Walter Doyle; and Charles W. Reinking and Evelyn Doyle Basso, also known as Evelyn Doyle Hiatt, as Trustees under the Will of Mary E. Doyle, Deceased, Defendants and Respondents. Civ. 10147.

Page 805

15 Cal.Rptr. 805

195 Cal.App.2d 459

Sally Lou Doyle WOODRING, Plaintiff and Appellant, v. Evelyn Doyle BASSO, also known as Evelyn Doyle Hiatt; Lucy Doyle Hadaway; Zelma Doyle, also known as Tessie Doyle; Meldrum Doyle; Edward R. Doyle; Walter J. Doyle, also known as Walter Doyle; and Charles W. Reinking and Evelyn Doyle Basso, also known as Evelyn Doyle Hiatt, as Trustees under the Will of Mary E. Doyle, Deceased, Defendants and Respondents.

Civ. 10147.

District Court of Appeal, Third District, California.

Sept. 8, 1961.

Geary, Spridgen & Moskowitz, Santa Rosa, and Whitman, Ward & Thomas, Downey, for appellant.

DeMeo & DeMeo, Santa Rosa, for respondent Meldrum Doyle.

Murphy, Brownscombe & Gleason, Santa Rosa, for other respondents.

WARNE, Justice pro tem.

This is an action to set aside a decree of distribution and impose a trust upon the grounds of mistake and fraud. Demurrers to the second amended complaint were sustained without leave to amend and judgment was entered for the defendants. From the judgment plaintiff appeals. The defendant Meldrum Doyle made a separate appearance by filing a demurrer to plaintiff's second amended complaint. All other defendants appeared and likewise filed demurrers to the second amended complaint. The grounds of demurrer were in substance basically the same. The trial court by a single order sustained the demurrers to plaintiff's second amended complaint on the ground that the second amended complaint failed to state facts sufficient to constitute a cause of action, and also on the ground that the causes of action set out therein appeared to be barred by the statute of limitations. The demurrers were sustained without leave to amend. Apparently, two separate judgments on the order sustaining the demurrers were entered inadvertently, one dated August 16, 1960, in favor of defendant Meldrum Doyle and the other dated August 17, 1960, in favor of all other defendants dismissing the action and awarding costs. The issues as to all parties are the same.

There can be only one judgment in any case between the same parties. Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 702, 342 P.2d 987. However, in the instant case the trial court's order sustaining the respective demurrers was not a piece-meal disposition of the case, but clearly a final disposition of all of the causes of action. It accomplished a single object. Since the case has been fully briefed, and as all pertinent documents are before this court, in the interest of justice and to prevent unnecessary delay, we have concluded that the judgment of August 16, 1960, in favor of defendant Meldrum Doyle should be vacated and set aside and the judgment of August 17, 1960, should be amended to include Meldrum Doyle.

The notice of appeal from that judgment may be properly treated as the notice of appeal from the judgment as thus amended. This brings us to the appeal on the merits. Behr v. County of Santa Cruz, supra, 172 Cal.App.2d at page 703, 342 P.2d 987.

Plaintiff's complaint is in the nature of a direct attack upon a decree of final distribution in the matter of the estate of Mary E. Doyle, entered by the Superior Court of Sonoma County on February 25, 1927. The cause of action alleged is equitable in nature and seeks to set aside the decree upon the theory of extrinsic fraud and mistake.

The allegations made in the second amended complaint are substantially as follows: The appellant and the respondents are the natural children of Fred R. Doyle who died on June 21, 1959. Fred R. Doyle was one of the natural sons of Mary E. Doyle, deceased, who died on March 3, 1926, in Sonoma County.

Mary E. Doyle left a will which was probated in the Sonoma County Superior Court. Article VII of the will named her son, Frank P. Doyle, as trustee for the benefit of her son, Fred R. Doyle, and the issue of Fred R. Doyle. The trust provisions were to the effect that one-half of the trust estate was to be accumulated for the benefit of the issue of Fred R. Doyle until they individually reached majority. At that time the income from the per capita share of each individual was to be paid until he or she, respectively, attained thirty years of age, at which time his or her share of the corpus was to be distributed. The income from the other onehalf of the trust corpus was to be paid to Fred R. Doyle during his lifetime. Upon the event of his death the disposition of his part of the trust was to be to his issue in accorcance with the other provisions.

The second amended complaint then alleges that the appellant, Sally Lou Doyle Woodring, is one of the issue of Fred R. Doyle; that she was born August 12, 1927; and that 'The decedent, Mary E. Doyle, intended to include plaintiff as a beneficiary under the terms and provisions of said will and the trust created thereunder and said Mary E. Doyle, Deceased, intended said class, 'issue of my son, Fred R. Doyle,' to remain open until the death of said Fred R. Doyle, or until the oldest of the issue of said Fred R. Doyle should attain age thirty (30) years, whichever occurred first.'

It is further alleged that on February 25, 1927, the superior court made its decree of final distribution in the matter of the estate of Mary E. Doyle and that the court was not at the time informed that appellant was en ventre sa mere, nor that appellant was one of the class referred to in Article VII of the will. It is also alleged that 'At no time before the making or entry of said decree of final distribution was plaintiff able herself or through a representative to inform this court of her existence or of the fact that she was a member of said class. At the time said decree of final distribution * * * was entered, this court was mistaken as to the identity of the members of the class * * * in that said court believed that said class included only * * * [naming the defendants]. As a result of said mistake, this court made and entered its decree of final distribution * * * naming said defendants and omitting to name plaintiff as the members (sic) of said class, namely, 'issue of my son, Fred R. Doyle.''

The second amended complaint proceeds to allege that: 'Plaintiff first acquired knowledge that Article VII of the last will and testament of Mary E. Doyle, deceased, established trusts for the benefit of the issue of her father, Fred R. Doyle, within less than three (3) years preceding the filing of the original complaint herein. Plaintiff first acquired knowledge that this court had mistakenly failed to include her as a member of said class and that her existence as a member of said class had not been disclosed to this court less than three (3) years immediately preceding the filing of the original complaint herein. Since the appointment of the defendant Evelyn Doyle Basso as one of the trustees in the trusts created by said Article VII of the will * * *, plaintiff has relied upon the statements and representations made by said defendant Evelyn Doyle Basso concerning plaintiff's rights under said trusts. After the appointment of said defendant Evelyn Doyle Basso as one of the trustees of said trusts on September 17, 1947, plaintiff from time to time inquired of said defendant Evelyn Doyle Basso concerning her rights, if any, under the trusts * * *. On each occasion * * *, plaintiff was informed by said defendant that plaintiff had no rights under the provisions of the trusts created by Article VII of said last will and testament because the decree of distribution * * * did not name plaintiff as one of the beneficiaries and remaindermen of such trusts. On at least one occasion in February, 1959, said defendant Evelyn Doyle Basso requested her attorney to write to plaintiff concerning plaintiff's interests * * *. Said defendnat's attorney also advised plaintiff that the trusts * * * were for the benefit of Fred R. Doyle's six (6) children and that plaintiff had no rights therein because she was not named in the decree of distribution * * *. At no time did said defendant or her attorney or anyone advise plaintiff of the provisions of Article VII of the * * * will * * *, and plaintiff had no actual knowledge of such provisions until sometime in late February or March, 1959. Plaintiff believed and relied upon the representations and statements * * * until plaintiff sought her own counsel in February or March, 1959 at which time plaintiff for the first time learned of the actual provisions of Article VII * * *. During all of the time since the appointment of defendant Evelyn Doyle Basso as one of said trustees, said defendant had knowledge of the provisions of Article VII * * *, but did not disclose to plaintiff the provisions thereof * * *.'

In the third alleged cause of action plaintiff alleged on information and belief that at the time of the hearing of the petition for final distribution of the estate of Mary E. Doyle 'the petitioners, trustees and the defendants had knowledge of the fact that plaintiff was en ventre sa mere and was a member of the class * * *. Plaintiff * * * alleges that said facts were not disclose to the court * * * and that this court was, as a result of the nondisclosure of said facts, misled and deceived in making, signing, filing and entering said decree of final distribution, omitting the designation of plaintiff as one of the members of said class.'

In her complaint plaintiff prayed for: (1) a decree vacating and setting aside that portion of the decree of final distribution dealing with the trusts and directing the modification of that decree to include plaintiff as a member of the class designated in the will as 'issue of my son Fred R. Doyle;' (2) an accounting; and (3) other relief.

The allegations concerning fraud through nondisclosure at the time of the hearing are clearly insufficient. These allegations are upon information and belief, without a statement of the facts upon which the belief is founded. Such a statement is required. Dowling v. Spring Valley...