87 Cal. App. 2d 494 | Cal. Ct. App. | 1948
This appeal involves an order refusing to set aside an order approving an assignment by Clare Ettlinger
Following the filing of a notice of motion for an order approving an assignment, a hearing was held at which Clare Ettlinger testified that by a recent order of distribution she had received certain property in accordance with the terms of the will; that Millieent Sears Ettlinger had been in receipt of $250 a month and that in the probable course of events she would continue to receive that amount for “some 18 or 20 years”; that this probably would reduce Clare Ettlinger’s income to “rather a nominal” sum; that she had been advised by her counsel that it would be to the best interest of the witness to sell all of her interest in the estate; that she had “also employed an auditor and a certified public accountant, who has done considerable work in connection with the books of the estate of Ettlinger, and the books of the Rio Farms Corporation, and he has submitted to you a complete analysis of holdings both of the estate and of the Rio Farms Corporation, and you have had the benefit of analyzing those and consulting personal friends of yours, besides the advice of counsel”; that $25,000 net had been offered by Hattie Straus and Gertrude Marx for her interest, from which certain attorney fees would be deducted. The following evidence also appears in the record: “ Q. And you appreciate that when you have effected the assignment and have accepted the money payment that it calls for, that you will have then surrendered and finally parted with all of your right, title and interest of every kind and character to this estate? A. Yes, sir.” Whereupon the court on October 22, 1946, approved the assignment and allowed a distribution of $1,000 to the residuary legatees and the widow’s assignees.
The executor subsequently filed the second and final account and petition for final distribution, which named the assignees of Clare Ettlinger as the persons entitled to receive her interest. On October 11, 1947, opposition to the Final Account and Distribution was filed by Clare Ettlinger, who claimed that the assignment of her interest “is unfair, unjust and
Attorneys for the assignees filed a motion to strike from the record the opposition of Clare Ettlinger to the final account and the affidavit in support of the motion to set aside the assignment. The probate court denied the motion to set aside the assignment and heard Clare Ettlinger’s objections to the distribution of the estate. In answer to the question “Now, tell me, Mrs. Ettlinger, what is your objection to the account and to the Court’s making an order for final distribution of your husband’s estate?” she answered: “Because I have been defrauded of my rightful legacy in my husband’s estate. ’ ’ The testimony reveals that her claim that she had been defrauded was based upon her assertion that her previous attorneys had
Certain points raised by respondents may be eliminated. The basic contentions made upon appeal are "that [1] at the time of the assignment of her interest in the estate to the mother and the aunt of the executor, the executor then secretly intended to purchase an annuity for Millieent Sears Ettlinger and thus free the estate for distribution to the beneficiaries, and [2] that the value of the estate had been grossly undervalued by the executor who was both the president of the corporation, whose stock was the major part of the estate, and also was the trustee of a ‘20-year voting trust controlling the stock in the estate. ’ ’ ’
The original order approving the assignment was appeal-able, but no appeal was taken therefrom, and the present proceeding was not instituted until nearly a year after that order was made and nearly 10 months after the annuity was purchased.
The record before this court does not show evidence of fraud that requires the order approving the assignment to be set aside. (Jorgensen v. Jorgensen, 32 Cal.2d 13 [193 P.2d 728].) On the contrary, there is evidence that the life expectancy of Millieent Sears Ettlinger, the financial condition of the Rio Farms stock, and the facts surrounding the voting trust, were questions upon which appellant was advised by her own attorneys. In this connection it should be noted that the appellant’s briefs do not mention any evidence showing that at the time of the court’s approval of the assignment the executor secretly intended to purchase an annuity for Milli
Appellant’s opening brief states that she was relying upon the statements of the executor and the attorney for the executor, that an annuity would not be purchased for Millicent Sears Ettlinger, and that therefore the estate would not be distributed until the death of Millicent Sears Ettlinger, who had a life expectancy of 20 years. However, the only evidence which appellant quotes to support this contention is the testimony of the attorney for the executor given after the approval of the assignment and on petition for a ratable distribution that “If I were a beneficiary here, I would not consider buying an annuity for a split second.” The testimony given by the attorney was an attempt to satisfy Millicent Sears Ettlinger and her attorney that her interest as a creditor of the estate would not be jeopardized by a ratable distribution of $10,000, The assignment had been previously approved.
Neither Civil Code, section 2235, nor Probate Code, section 583, supports the contention that the purchase of an interest of a beneficiary of an estate by the mother and the aunt of the executor is presumed to be a fraudulent transaction and thus may be classified as a fraud perpetrated by the executor, requiring the order approving the assignment to be set aside. An executor may not purchase property of an estate, or any claim against an estate, directly or indirectly, nor be interested in any such purchase. It should be noted that Probate Code, section 583, does not apply to the sale by a beneficiary of his interest in an estate. There is no evidence that the executor directly or indirectly purchased any interest in the estate. The transaction was authorized by order of the probate court after a hearing on the petition to assign. (54 Am.Jur. § 313, p. 248, § 466, p. 370.) Clare Ettlinger testified: “I have been defrauded in my husband’s estate through false representations of my previous attorneys. ’ ’
“It is necessary to examine the facts in the light of the policy that a party who failed to assemble all his evidence at the trial should not be privileged to relitigate a case, as well as the policy permitting a party to seek relief from a judgment entered in a proceeding in which he was deprived
The decree of distribution entered on November 10, 1947, is affirmed.
Peters, P. J., and Bray, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied November 8,1948.