91 Cal. 342 | Cal. | 1891
This is an application for a writ of prohibition to restrain the respondent, who is one of the judges of the superior court of San Joaquin County, from acting as judge in the matter of the application of the petitioner herein for the revocation of letters of administration issued to one Eugene Kay, upon the estate of William B. Johnson, deceased, and for her own appointment as administratrix in the place and stead of said Kay.
For the relief desired, petitioner relies upon the following allegations of her petition: —
“1. That the sons of the respondent (in conjunction with two other attorneys) have a contract with and from said Kay and other alleged heirs for the conveyance of one fourth of the said estate to them, when petitioner is declared to have no title therein, and said title shall be adjudged to be vested in said heirs.
“2. That the administrator, Kay, is a grand-nephew of the deceased, and claims that, as such, he and the other collateral kindred are entitled to the estate. *,
“3. That petitioner is the only child of the deceased, and, as such, is entitled to the whole estate, and also entitled to letters of administration (though a married woman), by virtue of au act of the legislature of 1891.
As shown by the verified answer of respondent, which must be taken as true, as far as the consideration of questions of law are involved, the objection to respondent hearing the matter and the application for transfer of the cause was made as follows:—
“ That thereafter, and on the seventh day of June, 1891, F. T. Baldwin, Esq., and E. S. Pillsbury, Esq., who had long been on terms of intimate friendship with respondent, made a friendly call on respondent, and during said call and a conversation with respondent thereat, Mr. Pillsbury stated to respondent, in substance, that he deemed he ought to inform respondent that their client, Mrs. Howell, the petitioner herein, objected to said matter being heard before respondent as judge of the court, because of the relationship between respondent and James H. Budd and John E. Budd, two of the attorneys for Mr. Kay, and suggested that.respondent request one of the- judges of the superior court in and for the city and county of San Fjancisco to hear and determine the matter. In reply to this, respondent stated, in substance, that his associate on the bench, Judge Smith, and respondent would not request any other judge to hear and determine any matter which they could hear and determine, and that the rules of the court respecting the apportioning of the business of the court among the judges thereof would not be departed from to suit the wishes of any litigant, and that the matter being in department 1 of the court, it would be heard and determined by respondent as judge; and respondent denies that said petitioner and affiant ever, in any way or manner, called
Under the authority of Havemeyer v. Superior Court, 84 Cal. 402, 18 Am. St. Rep. 192, the application to respondent for a transfer of the cause was clearly insufficient; yet we understand respondent, being desirous of an adjudication of the cause upon its merits, to have waived his objection to the course adopted by the petitioner in making her application for an order of transfer, and therefore we proceed to examine the cause upon the main questions involved.
It is insisted by petitioner that the respondent is disqualified from hearing her application to have the letters
“Sec. 170. No justice, judge, or justice of the peace shall sit or act as such in any action or proceeding, — 1. To which he is a party, or in which he is interested; 2. When he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law.”
At the very threshold of this examination, in order that we may intelligently consider the question as to who are parties to this proceeding in the lower court, we must ascertain what will be the force and effect of the judgment of that court denying or granting petitioner’s application as considered with reference to subsequent proceedings in the estate, and especially as considered with reference to the decree of distribution. In this estate, as alleged in the petition, the right of petitioner to administer depends solely upon the fact as to whether or not she is the child of deceased; that is the issue in the case. No exercise of discretion is allow'ed; the inquiry becomes a matter of legal right, and is, by the express provision of the statute, to be determined by the right of succession; and if the determination of that issue upon this hearing is to be conclusive upon her at final distribution, then this application for letters assumes a far more serious aspect, for it practically determines at the very inception of the probate proceedings who is to receive the residue of the estate upon final distribution, and places the respondent in the exact position as though he were proceeding to hear the petition for distribution rather than an application for letters of administration. In section 550 of Greenleaf on Evidence, we find the following: “And if the grant of administration turned upon the question as to which of the parties were next of kin, the sentence or decree upon that question is conclusive .everywhere, in a suit between the
Passing to the law of this state, we find practically this identical question carefully considered by this court in the case of Garwood v. Garwood, 29 Cal. 514, Avhere the doctrine heretofore announced is fully approAed and declared to be the law of the land. Respondent insists that the effect of the law found in Garwood v. Garwood, 29 Cal. 514, has been nullified by the following provision of section 1908 of the Code of Civil Procedure: “ In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, .... the judgment or order is conclusiAe upon the title to the thing, the will, or administration.” The fair and legitimate interpretation of this provision is, that a judgment or order respecting the administration of the estate is conclusive upon the administration as to all matters directly involved in
We conclude, therefore, that the judgment to be rendered by the court upon the hearing of petitioner’s application for letters of administration (subject to appeal) will determine for all time and in all courts, as far as the parties to the proceeding are concerned, whether the petitioner is the child of said Johnson, deceased, and therefore entitled to all of his estate, to the exclusion of kindred of the collateral line, or whether Kay, the administrator, and other collateral kindred are next in the direct line of succession, and entitled to the whole of the estate of said deceased.
What is the interest of the sons of respondent in this estate? The allegation of the petitioner is: “That said Kay and the other said next of kin after this petitioner have made a valid agreement with james H. Budd, Esq., John E. Budd, Esq., and Messrs. Nutter and De Vries, all of whom are attorneys at laws, that they shall have one fourth of said estate in case and upon condition that the said question of the heirship of this petitioner and affiant be determined adversely to her and in favor of said Kay and said other next of kin.” It seems these parties have a contract for a share of the estate, which consists of real and personal property, and which share is contingent upon the nature of the judgment to be rendered upon the hearing of the application for letters of administration; which matter respondent threatens to hear and determine, and whose threatened acts in that regard this very proceeding is inaugurated to restrain and forbid. These parties will be the owners of a perfect equitable title to one fourth of the estate upon the happening of a condition, and that condition is dependent upon the act of respondent. To the extent of the investigation of the questions pending before us, the
It is assumed in the argument of respondent, although not found in the petition, that the consideration for this agreement was legal services to be performed by these attorneys in futuro, and he insists that until these services are performed, the sons of respondent have no interest in the estate. No principle of equity can be found to support such argument. In equity, from the time of the execution of the contract for the sale of land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase-money, becomes a trustee for the vendor. Such contracts, for most purposes, are deemed executed, upon the principle that courts of equity will regard substance rather than form, and thus assist the parties by extending to the agreement the effect desired and intended. Pomeroy, in his Equity Jurisprudence (vol. 1, sec. 105), speaking of such agreements, says: “ The view which equity takes of the juridical relations resulting from the transaction is widely different. Applying one of its fruitful principles, that what ought to be done is regarded as done, equity says that from the contract, even while yet executory, the vendee acquires a real right, a right of property in the land, which, though lacking a legal title, and therefore equitable only, is none the less the real beneficial ownership, subject, however, to a lien of the vendor as security for the purchase price as long as that remains unpaid.” This principle is fully recognized by the decisions of this court. (See Willis v. Wozencraft, 22 Cal. 616; Love v. Watkins, 40 Cal. 565; 6 Am. Rep. 624; Hoffman v. Vallejo, 45 Cal. 565; Watson v. Sutro, 86 Cal. 527.) In the case of Hoffman v. Vallejo, 45 Cal. 565, the court said, referring to a contract similar to the one respondent alleges this to be: “ The agreement of September, 1865, constituted Hoffman and the Wilsons
Counsel for petitioner has argued with great learning that proceedings upon the application for letters of administration are in the nature of proceedings in fern, and therefore all persons interested are parties; but owing to the views we entertain upon the branch of the case already discussed, it will not be necessary to consider that question.
To hold that the word “party,” as used in section 170 of the code, is confined to parties of record by name would be a construction so narrow as to find support neither in principle nor authority. To say that a judge would be qualified under this provision to try and determine an action in ejectment, brought by the administrator of an estate of which the children of the judge are the heirs, or that he could render judgment in a foreclosure suit where an administrator is defendant and the heir is a son of the judge, would be to sacrifice substance to form, and contrary to all principles of modern legal jurisprudence. In the case of Fredericks v. Judah, 73 Cal. 608, the court said: “Although in that action Mrs. Judah, as executrix, was plaintiff, it was an action between the same parties within the meaning of this provision, for the executrix represented the heirs therein.” In the case of Briggs v. Briggs, 80 Cal. 255, it was held that a successor in interest was a “party” within the meaning of the provision that a deposition properly taken could be read in evidence in a subsequent action “ between the same parties.” In the case of Schultze v. McLeary, 73 Tex. 92, the court said that notwithstanding that the judge was not related to the party by name, yet that “if he was but the representative of his wife, who was so related, or if he was the representative of a right claimed by himself and wife in community, or if any judgment rendered in his favor or against him would affect the right of the wife
The code provides that its provisions “are to be liberally construed, with a view to effect its objects and to promote justice.” (Code Civ. Proc.. sec. 4.) And again, “ when a statute or instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.” (Code Civ. Proc., sec. 1866.) These provisions of the code, taken in connection with the authorities cited, indicate that section 170 is to have no technical or narrow construction, but is to be broadly applied to all litigation, where a judge is called upon to adjudicate property rights. We conclude, therefore, that the word “party,” as used in section 170, is not confined to the parties to the record by name, but includes all persons represented by parties to the record.
Are the sons of the respondent represented by a party to the record? It seems unnecessary to examine into the question as to the relations existing between the administrator and the heirs, for the administrator himself is one of the heirs, and is a grantor under the agreement to convey to the sons of respondent. While he is not the sole grantor, that fact is immaterial, for the disqualification results from the kind of interest held by the sons, and not from the amount of interest. Their ownership of a portion of the estate is as disqualifying as if they owned it in entirety. As petitioner’s right to the estate will be conclusively determined upon the hearing of her application for letters
Respondent alleges in his answer that he has no information or belief upon the subject sufficient to enable him to answer the allegation in said petition and affidavit “that said Kay and the other of said next of kin after this petitioner and affiant have made a valid agreement with James H. Budd, Esq., and John E. Budd, Esq., and Messrs. Nutter and De Vries that they shall have one fourth of said estate in case and upon condition, etc., and therefore he denies said allegation.” Petitioner objects to the sufficiency of the foregoing denial to create an issue, but inasmuch as respondent, in his brief, sets out that since the oral argument he has received information that will enable him to make a specific denial of the allegation, and asks to amend his answer in that regard, which application we are disposed to grant, it becomes unnecessary to pass upon the merits of petitioner’s contention in this respect.
The demurrer to the petition will be overruled, and the respondent will be allowed five days after service of a copy of the order thereof to file an amended answer in accordance with his request.
De Haven, J., Harrison, J., Paterson, J., and Beatty, C. J., concurred.
