297 P. 955 | Cal. Ct. App. | 1931
This is an appeal by the widow from an order for discontinuance of family allowance, from an order for ratable distribution, and from a decree of settlement of final account and final distribution in the matter of the estate of Alfred May, deceased. Appellant in her briefs has ignored the appeal from the first and second order, and accordingly we will confine our attention to the third point.
The decedent, Alfred May, was married to his first wife, Henriette F., in 1889, and immediately thereafter moved to Mexico, where he eventually engaged in business under the firm name of May Hermanos y Compania. Four children were born as the result of this marriage. About 1913, with his wife, Henriette F., he left Mexico and came to California but did not engage in business. His income was derived entirely from his interest in May Hermanos, and from investments most of which were in Mexican corporations. On January 3, 1925, Henriette May died intestate, a resident of San Francisco, leaving surviving her husband, Alfred May, now deceased, and the four children before mentioned. Subsequent to the death of their mother, Henriette *675 F. May, the four children executed to Alfred May, their father, an assignment of all their interest wherever situate in the estate of Henriette F. May. This assignment was never used. On March 31, 1926, Alfred May, the deceased, married Miriam K. Streckler, now Miriam K. May, the appellant, and on April 19, 1927, he died leaving surviving his widow, Miriam K. May, and the four children by his first marriage. On May 12, 1927, the last will and testament of Alfred May was admitted to probate in the Superior Court of the City and County of San Francisco, and under the terms of said will the widow and four children each are bequeathed one-fifth of the entire estate of Alfred May, deceased. By said last will and testament, Rene A. May, a son by the first marriage, is named sole executor to act without bonds, and after due proceedings qualified as such executor. The executor filed his first and final account and the petition for final distribution. Appellant filed objections. After a hearing, the court settled the account and decreed final distribution. Thereafter appellant appealed to this court from the said decree of final distribution.
It appears from the inventory and appraisement that the assets of the estate of Alfred May include an "interest of the decedent in May Hermanos y Compania, a partnership engaged in business in Hermosillo, State of Sonora, Republic of Mexico, amounting to approximately $55,812.00, subject to whatever interest therein may be determined by the Mexican courts to be vested in the estate of the late Henriette May now being probated in the Mexican courts, appraised at $55,812.00". And it appears from the first and final account filed by the executor that "the appraisers of the said estate in valuing the items of the claim of the decedent against May Hermanos y Compania appraised the said claim at the full amount of $55,812.00, whereas the said executor is of the opinion that only half of the said claim is the property of the estate of the decedent, and the remaining one-half thereof, as said executor is informed and believes, is the property of the estate of the late Henriette F. May, the first wife of the decedent, whose estate is now being probated in the State of Sonora, Republic of Mexico". It further appears from the first and final account that "the claims of the decedent against May Hermanos y Compania *676 and Compania Industrial del Pacifico are not now payable, but are payable over a period of years, and the said claims can be readily collected by the distributees of the estate of the said decedent as in these probate proceedings, and there is no necessity of continuing these probate proceedings for the collection thereof". The inventory and appraisement also contains the following: "Note. Various parcels of real property, situate in the Republic of Mexico, in which the decedent had an interest, one of the said parcels of real property being under a contract of sale to one Emilio Beraud, are not listed in the foregoing inventory because not within the jurisdiction of the State of California."
[1] Appellant contends that the evidence did not show what the community property law of Mexico was, and that the court was bound in its decree of distribution to apply the provisions of the California law in this case. Certain Mexican statutes were discussed during the hearing, and from the transcript, we conclude that counsel for appellant knew and understood the law of Mexico, and from the briefs that, if the Mexican statutes were properly before the court, there was no misapplication of such statutes to the order of distribution. Likewise, respondent concedes that if the case were to be considered solely in the light of the California law, the interests of Henriette F. May, the first wife, in the community property, would have vested in her husband on her death, and that the partnership would have been dissolved by the death of Alfred May. We have, therefore, as the first question to consider: Did the court upon the hearing have the right to apply the Mexican provisions of the community property law to the facts as presented? If any provision of this law was introduced, then the court had the right to consider any or all of the Mexican laws upon this subject which might appear in the volume of laws introduced. (See Ex parte Spears,
[2] Appellant contends that the court erred in distributing the claim of the estate against May Hermanos y Compania to the heirs instead of requiring the executor to collect the same and account therefor in the estate of Alfred May pending in the city and county of San Francisco. The executor of the Alfred May estate in San Francisco is also the executor of the estate of Alfred May in Mexico; likewise he is the administrator of the estate of Henriette F. May pending in Mexico. Appellant relies upon the decision in the case of In re Ortiz's Estate,
After the death of Henriette F. May, the children heirs executed a so-called assignment of their interest in her estate to their father, the deceased herein. Appellant contends that the trial court sitting in probate passed upon the validity of this alleged assignment. The assignment was executed but was never accepted and never presented for use in Mexico. In the decree of settlement of the final account and of final distribution, there is a reference to this instrument, but the court did not make a finding thereon.
[3] Further objection is made that respondent had no authority to extend the time of payments of a debt of, or to *679 make himself, as executor, a copartner in, May Hermanos y Compania. Under the California law an executor of an estate of a deceased partner, by reason of his position of executor, has no power to extend the partnership or to do anything else which would create the partnership anew, but this agreement was in fulfillment of the original articles of copartnership and the respondent acted in his capacity as executor in Mexico. The surviving partners had a right to insist that the interest of the decedent should be liquidated in the manner provided in the original articles. Under the original articles the heirs are "obliged to leave in the possession of the copartnership or of the person or persons which may legally succeed the same, the amount of their interest in the copartnership capital and profits for the term of five years".
The interest of the decedent in the copartnership in the Beraud contract (also objected to by appellant) would not be binding on the Mexican company, on Beraud, or on the children of Henriette F. May, and the court properly declined to fix the amount, but decreed to each heir an undivided fifth interest.
Judgment affirmed.
Tyler, P.J., and Knight, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 18, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 18, 1931.