277 P. 509 | Cal. Ct. App. | 1929
This original proceeding is brought to prevent the respondent court from proceeding further in an action entitled ArthurSchuster et al., Plaintiffs, v. Adolf Schuster et al.,Defendants, and particularly to prevent the respondent court from sentencing the petitioner for contempt of court, because of his failure to answer questions at the time fixed for the giving of his deposition. The principal contention of the petitioner is that the respondent court has no jurisdiction over the subject matter of the action, or assuming that it has jurisdiction, it ought not to seek as a matter of comity to exercise the jurisdiction. The following constitute the salient facts: Benjamin Schuster, a resident of Apache County, Arizona, died December 10, 1911. His will was admitted to probate by the superior court of that county and state on January 2, 1912, and letters testamentary were issued to the executors named in the will, to wit: Adolf Schuster (the petitioner herein), Max Schuster (now deceased) and Josephine Schuster (the widow of deceased and one of the plaintiffs in the action now pending in the respondent court). By the terms of the will a large portion of the estate was given to Adolf Schuster, Josephine Schuster and Max Schuster as trustees, for the purposes of paying certain fixed portions of the income to Josephine Schuster, the widow, and to her for the maintenance of the children of the deceased, and upon the arrival of the children at certain ages, to pay to them certain portions of the principal and finally upon the death of the widow and the attainment of a designated age by each of the children, to distribute to them the remainder of the principal. The children are Arthur Schuster, Marguerite Schuster Ellison, Lloyd Schuster and Edward Schuster. All of these children except Edward Schuster are plaintiffs in the pending action, the plaintiff Lloyd Schuster being an incompetent and appearing by Rolland Ellison, his guardian ad litem. Edward Schuster is made a defendant. On February 18, 1913, the trust estate was by an order of the superior court of Apache County, Arizona, distributed to the trustees named. Max Schuster died October 6, 1925, and Adolf Schuster was appointed executor of his last will and testament. On December 31, 1926, Marguerite Schuster Ellison and Arthur Schuster filed their petition in the *622 Arizona court setting forth the death of Max Schuster, one of the trustees, and alleging that the trustees had not accounted and that the petitioners' interests were adverse to those of the trust estate and that Adolf Schuster had assumed sole control thereof, and asked the court to appoint a new trustee in the place of Max Schuster, deceased, for the purpose of securing a proper accounting. The petitioner here filed an answer thereto denying that his interest was adverse to that of his trust and admitting his failure to render a formal account, although he said the books had always been open to the petitioners and beneficiaries, and averring his willingness to account. It does not appear whether this petition has ever been heard or determined. It does appear, however, that a petition by Adolf Schuster to have ascertained the amount which should be distributed to Marguerite Schuster Ellison, prior to the decease of Josephine Schuster, filed by him on April 18, 1927, is still pending and undetermined in the Arizona court, the proceeding having been continued at the request of Marguerite Schuster Ellison. It also appears that pursuant to the allegation of willingness to account already noticed, the trustees, by Adolph Schuster, did on April 14, 1927, file an account setting forth the assets and liabilities of the trust estate together with the income and disbursements thereof. The plaintiffs in the action pending in the respondent court, Marguerite Schuster Ellison, Lloyd Schuster and Josephine Schuster, interposed and filed written objections to the report and account. A hearing was had from May 2 to May 9, 1927, upon these pleadings in which all of the appearing parties were represented by counsel, and on September 3, 1927, the court made its order and decree settling the account. Some minor items were not allowed, but on the whole the report was confirmed. On October 26, 1927, Marguerite Schuster Ellison gave notice of appeal from the order and decree to the supreme court of the state of Arizona, and it is alleged that the appeal is still pending and undetermined.
Within two months after the appeal was taken and on December 16, 1927, Marguerite Schuster Ellison and the others who filed their objections before the Arizona court and participated in the hearing, commenced the action already mentioned in respondent court, in which they allege, in very *623 similar vein to the proceeding in Arizona, that Adolf Schuster, the petitioner here, has exercised full control and management of the trust estate; that his interests are adverse to those of the trust estate by reason of his direction to the A. B. Schuster Company, a corporation, which it is alleged he dominates, to take possession of certain of the trust property for its own use and benefit; that plaintiffs are entitled to an accounting in order to discover these transactions; that plaintiffs are unaware of the exact amounts which should have been paid to the children of the deceased, Benjamin Schuster, upon arriving at certain ages, to wit, twenty-two years and twenty-seven years, and that petitioner has not paid them their full share in accordance with the provisions of the trust; that they are unable to determine the exact amount which should have been paid to the children until an accounting has been had, although it appears that the Arizona court has ratified and confirmed the payment of the amounts due to all the children on arriving at the age of twenty-two and the age of twenty-seven, except Marguerite Schuster Ellison, and has discharged the trustees as to these interests, and that Edward Schuster has acknowledged receipt of his full share payable to him at the age of twenty-seven. They ask that Adolf Schuster, the petitioner here, and the A. B. Schuster Company, a corporation, which corporation they say is his alter ego, be required to account and that petitioner be removed as trustee and someone else be appointed in his stead. There are other facts relating to the procedure by which it was sought to compel the petitioner to give his deposition and to punish him for contempt in refusing to answer the question, but it is unnecessary to state them.
[1] It is patent that the Arizona court has heretofore assumed and exercised and is still exercising jurisdiction of the trust, and a strange and anomalous situation would surely result if the California courts should remove a trustee who is appearing as such in Arizona, especially if the latter court should be of the opinion that he should not be removed. Furthermore, all of the parties to the action pending in the respondent court, with the exception of the defendant corporation, have appeared in and submitted their contentions in the foreign forum. Dissatisfaction on the part of litigants with the orders and decrees of that *624
court should not prompt the courts of a sister jurisdiction to attempt an interference. There are other cogent reasons which might be enumerated, all of which point in the same direction and indicate to our minds a situation entirely different from that considered in Smith v. Davis,
[2] Indeed, our legislature, sensing something of the situation which might arise by action of different courts in different counties of our own state, has said, in section
"It is undoubtedly a well-established principle of law that a trustee appointed by a foreign court is amenable only to that court, and the fact that his residence is in another jurisdiction will not confer authority there to control the administration of his trust or to require accountability for the trust property. The rationale of this doctrine is that, the trust relations having been created by judicial decree of another country, the trustee is accountable only to the court creating the trust. He becomes the instrumentality of the court for the administration of the property entrusted to his care and custody, which is to be considered and treated as in custodia legis; and if other jurisdictions were permitted to interfere with and to direct the execution of the trust it would lead to great conflict of authority and inextricable confusion, which would hinder rather than aid in the rightful administration thereof. (2 Beach, Trusts and Trustees, sec. 758; Campbell v. Sheldon, 13 Pick. (Mass.) 8; Jenkins v. Lester,
[5] The respondents assert, however, that inasmuch as the complaint in the action pending fails to disclose the proceedings in the Arizona courts other than to say that the plaintiffs have been endeavoring to secure an accounting "through proceedings in the superior court of the state of Arizona, in and for the county of Apache," and that it does not allege the fact that the personal defendants reside in that state, or that the testator was a resident there and his will probated there, but that said matters are set up by way of affirmative defense, the writ of prohibition will not lie. In the petition for the writ, however, the petitioner repeats and replead all of the allegations of the affirmative defense and the respondents have admitted their truth. [6] It is true that in respondents' brief they suggest that they be permitted to amend to meet these allegations, but this suggestion, though it were made in the form of a motion, would be without appeal to our sense of justice, for the *629 reason that it appears from the abstract of record filed in the cause pending in the supreme court of Arizona, and the abstract of the probate docket, together with copies of the instruments filed in the probate proceedings in Arizona, accompanying the report of the referee appointed by this court to take testimony upon one branch of the case, that the material allegations of the affirmative defense are true. What difference can it make, when the truth of the matter appears, whether it be by allegations of the petitions supplemented by admissions or in the complaint? Here the facts are to be considered as though fully settled, and since a consideration of them discloses the excess of jurisdiction, the writ ought to issue. And this is true because there is no remedy by appeal from the judgment of contempt. Furthermore, it appears that though there were a remedy by appeal, it would not be adequate to protect the petitioner against the loss bound to accrue to him by being forced to bring his records from Arizona to California.
The peremptory writ will issue.
Works, P.J., and Craig, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 31, 1929, and a petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 1, 1929.
All the Justices concurred.