Bodine v. Superior Court

Petition for prohibition against impaneling or employing a jury in the hearing of the second half of a petition for determination of heirship in the Estate of Louise W. How, also known as Louise Bodine How. Alternative writ was issued. We now hold that the peremptory writ should be granted.

Crocker-Anglo National Bank was named executor in Mrs. How’s will. Having qualified and the appropriate time for filing petition to determine heirship having arrived, the executor filed such a petition on November 2,1961 (Prob. Code, § 1080). The will provided: “Fifth: I give, devise and bequeath all my property of every kind and nature, real, personal and mixed, and wheresoever situated and howsoever held, of which I may die seized or possessed, or in which my estate may have any interest, or over which I may have any power of disposition, to my husband, Harold W. How. In the event that my said husband shall predecease me, then I give, devise and bequeath one-half (%) thereof to my heirs-at-law and one-half (%) thereof to the heirs-at-law of my husband, Harold W. How, by right of representation.” Mrs. How died on October 12, 1960; her husband had predeceased her on September 16, 1960.

The executor’s petition named as persons entitled to notice the following: Mrs. Eleanor Gray Perry, sister of Mrs. How; William W. Bodine, Jr., nephew of Mrs. How; Samuel T. Bodine, nephew of Mrs. How; James F. Bodine, nephew of Mrs. How; Mrs. Jane B. Sniffen, niece of Mrs. How; and Ross W. Whistler, first cousin of Harold W. How. It prayed for a determination of the persons entitled to distribution of the estate. The hearing was set for November 20, 1961, on which date the court continued the matter to December 4,1961, no request or demand for jury or deposit of jury fees having been previously made. On December 4, 1961, the five persons

On June 15, 1962, pursuant to a stipulation entered into by (a) the attorneys for Boss Whistler, the only heir of Harold W. How known at the time of the hearing on December 4, 1961; (b) the attorneys for the new claimants, and (c) the attorney for the executor, a pretrial conference was set for June 29, 1962. At that hearing the attorneys for the new claimants without giving any previous notice of motion or making any deposit of jury fees requested trial by jury, the motion was granted by Hon. W. Preston Butcher, judge then presiding, over objection of Boss Whistler’s counsel and the clerk was directed to draw a panel therefor.

The petitioners for the writ of prohibition are the five heirs of Louise W. How whose rights were declared in the “Interlocutory Decree” of December 28, 1961, and said Boss Whistler. Petitioners herein are all represented by the same attorneys, and were so represented at the hearing on December 4, 1961, and at the time of the signing of the stipulation for the pretrial conference.

In our opinion there are insuperable obstacles to recognizing a right to jury trial upon the portion of the case which relates to the heirs of Dr. How. We approach the problem first upon the basis that there now is no right to a jury trial regardless of any technical waiver through failure to make seasonal demand and deposit of jury fees.

Summarily stated, our line of reasoning is this. We here deal with a statutory proceeding in rem which is indivisible and hence there cannot be two separate decrees; the interlocutory judgment made by Judge Heekendorf does not bind him or any other judge to whom the matter may be trans

A proceeding for determination of heirship, like all other probate matters, is statutory and jurisdiction depends upon compliance with terms of the statute, primarily the Probate Code. Estate of Wise, 34 Cal.2d 376 , 381 [ 210 P.2d 497 ] : “ ‘Probate proceedings being purely statutory, and therefore special in their nature, the superior court, although a court of general jurisdiction, is circumscribed in this class of proceedings by the provisions of the statute conferring such jurisdiction, and may not competently proceed in a manner essentially different from that provided. (Smith v. Westerfield, 88 Cal. 374 , 379 [ 26 P. 206 ].) ’ ” The res is “the right of heirship and distribution” and upon that issue “the decree is binding on the whole world” (Id. at p. 384). “Such a proceeding is not an ordinary civil action, but a specialized proceeding in rem.” (Id. at p. 383.) “So it has been said that such heirship ‘decree [is] conclusive against all persons’ as the ‘basis for the decree of distribution which [is] to follow’ (Estate of Blythe, 110 Cal. 231 , 234 [ 42 P. 643 ]); it settles ‘the rights of all persons claiming as heirs of the decedent, whether or not they are named in the complaint or personally served with summons’ (Title & Document Restoration Co. v. Kerrigan, 150 Cal. 289 , 307 [ 88 P. 356 , 119 Am.St.Rep. 199 , 8 L.R.A.N.S 682 ]) and whether or not they were ‘individually named in [the] notice. . . .’ (Estate of Blythe, supra, 110 Cal. 231 , 233; see also 11B Cal. Jur. § 1200, p. 671; § 1205, p. 676; § 1208, pp. 680-681.) The decree is not one ‘in personam in favor of one of the parties against another.’ (Edlund v. Superior Court, 209 Cal. 690 , 695 [ 289 P. 841 ].)

Estate of Radovich, 48 Cal.2d 116 , 121 [ 308 P.2d 14 ] : “ ‘By giving the notice prescribed by the statute, the entire world is called before the court, and the court acquires jurisdiction over all persons for the purpose of determining their rights to any portion of the estate, and every person who may assert any right or interest therein is required to present his claim to the court for its determination. Whether he appears and presents his claim, or fails to appear, the action of the court is equally conclusive upon him, “ ‘subject only to be[ing] reversed, set aside, or modified on appeal. ’ ” The decree is as binding upon him if he fails to appear and present his claim, as if his claim, after presentation, had been disallowed by the court.’ ”

In re Burton, 93 Cal. 459 , 464 [ 29 P. 36 ] : “It is true, however, that in special proceedings the court must exercise its jurisdiction, substantially at least, in the mode prescribed by the statute authorizing the proceeding.” (See also Woods v. Security-First Nat. Bank, 46 Cal.2d 697 , 703-704 [ 299 P.2d 657 ]; Bales v. Superior Court, 21 Cal.2d 17 , 24 [ 129 P.2d 685 ]; Estate of Caswell, 152 Cal.App.2d 195 , 196 [ 312 P.2d 703 ]; Estate of Winnie, 175 Cal.App.2d 698 , 703 [ 346 P.2d 856 ]; Stevens v. Torregano, 192 Cal.App.2d 105 , 114 [ 13 Cal.Rptr. 604 ].)

When the personal representative is petitioner for determination of heirship he represents all parties in interest (Estate of Barber, 49 Cal.2d 112 , 119 [ 315 P.2d 317 ]; Estate of Lynn, 109 Cal.App.2d 468 , 473 [ 240 P.2d 1001 ]), at least those who do not appear and assert their own interests. Speaking of the predecessor of Probate Code section 1080, Blythe v. Ayres, 102 Cal. 254 , 258 [ 36 P. 522 ], says: “Section 1664 was clearly intended to provide the means by which, where there are hostile claimants to an estate, all the conflicting rights thereto may be summarily and finally determined in one proceeding. (In re Burton, 93 Cal. 459 , 461 [ 29 P. 36 ].)” (Italics by the court.) This is but another way of

The Wilson case was an action for declaratory judgment brought by a beneficiary against the trustee of an express trust. The case was initially heard by Judge Gould who entered an interlocutory decree in favor of plaintiff; the action was later tried de novo by Judge Burnell who rendered judgment for defendant. This court held that the Gould judgment was in fact interlocutory and then said: ‘ ‘ Therefore it has become the law of the case that such judgment was an interlocutory judgment, and after Judge Burnell retried the action de novo, as it was his duty to do in view of the decision in Hughes v. DeMund, 96 Cal.App. 365 , 368 [ 274 P. 405 ], Judge Gould’s interlocutory judgment became of no force or effect. Hence there is no merit in appellant’s contention that the interlocutory judgment of Judge Gould is res judicata of facts subsequently found by Judge Burnell.” (Pp. 449-450.)

It thus becomes apparent that the present posture of the instant proceeding is that all issues are open for further adjudication by the judge who rendered the interlocutory

Gtiardianship of Sullivan, supra, phrases the rule as follows : “A party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury, and from the jury that hears the evidence, where it is tried with a jury. He cannot be compelled to accept a decision upon the facts from another

Also persuasive to the effect that a jury cannot take over from a judge in the midst of a trial are Swift v. Superior Court, 39 Cal.2d 358 , 363-364 [ 247 P.2d 6 ] and Estate of Black, 199 Cal. 257 , 262 [ 248 P. 1015 ].

Swift dealt with the procedure to be followed upon a contest of a will before probate,—whether the petition for probate should be heard first by the judge and then the contest be heard by the jury. At page 363 the court said: “If the trial court, in its discretion, is allowed to proceed with the hearing of the preliminary proof in support of the petition for probate in the absence of a jury, two separate proceedings will necessarily result. It will then frequently happen that evidence introduced by the proponents upon the hearing of the preliminary proof before the court alone will have to be repeated before the jury, as such evidence is often material in the consideration of the issues raised by the contest.

“On the other hand, nothing is to be gained in leaving to the trial court’s discretion the determination that the contest be tried before the hearing of the preliminary proof. If this procedure is followed, the situation may arise where the jury will find for the proponents on the issues raised by the contest, while the trial court might thereafter conclude that a material matter, not placed in issue by the contest, is not established on the hearing of evidence supporting the petition for probate. These considerations clearly indicate that the interrelated proceedings must be heard at the same time.

“In the interest of establishing a definite rule of procedure to be followed under such circumstances, we believe that it is appropriate for this court to declare that when a will is contested before probate and either party demands a jury trial of any issue as to which the right to a jury trial exists (Prob. Code, § 371) the trial court cannot proceed with any phase of the hearing in the absence of a jury but must impanel a jury at the outset. ’ ’

Estate of Black, supra, was another contest of a will before

Estate of Buchman, 132 Cal.App.2d 81 [ 281 P.2d 608 , 53 A.L.R.2d 451 ], is also persuasive. It involved an appeal from decree of partial distribution and order settling executor’s accounts. “Appellant also seeks review of the order vacating the setting of his petition to determine heirship, contending he was thereby denied a trial by jury to which he was entitled by section 1081 of the Probate Code. He also assigns as error the court’s ruling in denying his motion to be relieved from waiver of a jury trial in the hearing of respondent’s petition for partial distribution. In brief recapitulation of the events leading up to these rulings, respondent filed her petition for partial distribution on January 26, 1953. Appellant filed his answer thereto on February 13, 1953.” (P. 100.) This and other matters were continued to April 6, 1953. On April 2 appellant filed a petition for determination of heirship and prayed for jury trial. “This was 65 days after service of citation on him of respondent’s petition for partial distribution, 48 days after the matter was first set for trial, and about three weeks after the hearing had commenced and stipulations made as to the conduct of the proceedings.” (P. 100.) The petition for partial distribution and answer thereto embraced all the issues involved in the heirship proceeding. “In proceedings for partial distribution, either party has a right to demand a trial by jury of any issues of fact raised therein. [Citations.] From the record, it is clear that appellant’s former counsel waived any right to a trial by jury by failing to demand a jury ‘at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation . . .’

The record herein shows that at the hearing of December 4, 1961, before Judge Heckendorf, the subject of identity of the heirs of Dr. How consumed about 20 pages of a reporter’s transcript of 40 pages—the producing of evidence and declaring the difficulties the executor had had in ascertaining who are the heirs and assembling proofs of the pertinent facts. At the pretrial hearing of June 29, 1962, counsel for the Grangers (late-comers) declared his intention to move at the next hearing for an order striking all of said evidence concerning the heirs of Dr. How. Mr. Schramm, attorney for the Bodines and Whistler, told the court that extensive evidence on the subject had been received. Mr. Rogers, attorney for the executor, said : “Evidence—you see, as I said, this is a very involved family tree relationship. There was evidence given at the time of that hearing with regard to the heirs of Doctor How, relative to the very question that is now before the Court, as far as the executor had been able to determine the facts of the family relationship as related to Doctor How, after the introduction and, as Mr. Schramm said, there was also some evidence given as to the—as to the matters which came up at the time of the execution of the will. The Order of Judge Heckendorf, if the Court will notice it, says that as to the determination of heir-ship, so far as Doctor How is concerned, it is continued for the taking of further evidence. The Court : But they did take evidence. Mr. Rogers : Oh, this was taken, yes. The Court : I didn’t know that. On the original petition, was evidence taken on that subject? Mr. Rogers: Very definitely, sir.” “Mr. Schramm : Your Honor, this case is [sic] not only proceeded to the point where it is being set for trial, this ease is in the middle of a trial. I would suggest to the Court that this Court has no authority, and if it had authority it would be making the gravest sort of an error to interrupt a trial before the Court. ’ ’

Section 1081, Probate Code, concludes with this language: “Any claimant entering or re-entering such proceedings shall be bound by evidence introduced and depositions

Viewing the matter from the standpoint of waiver, section 1081, Probate Code requires a request for a jury and deposit of the first day’s fees “at least five days prior to .the date fixed for hearing on the original petition.” (Emphasis added.) That hearing was held on December 4, 1961, and the motion for jury trial was first made on June 29, 1962, without giving of any previous notice; Van Ness How Bates had filed his claim on December 28, 1961, and the Grangers on March 14, 1962. Judge Butcher, although no previous notice of motion for relief under section 473, Code of Civil Procedure had been given, and no affidavit or other evidence was submitted in support of the motion, and though the statutory limit of six months had long since expired, relieved said claimants from default and granted their oral motion for a jury trial. The judge’s remarks made in that connection reflect a state of dubiety which was solved in the following manner: ‘1 Therefore, since I have refused to predetermine whether there is to be a question of fact on this question of whether the will is uncertain or ambiguous, that they want to reserve their right to a jury trial if the question of fact is raised, and will require parol or extrinsic evidence to prove the true intent of the testator. Upon that fact you wish a jury trial, is that true ? Mr. Harris : That is correct, your Honor. The Court : That is your contention, Mr. Thornburgh i Mr. Thornburgh : That is correct, your Honor. The Court : Now, I believe you know all of the circumstances and the broad discretion of the Court, and because a jury trial is otherwise mandatory, that I am going

Although the ease has been set for further hearing in Judge Heckendorf’s department of the court the petition alleges: “That the said Superior Court of the State of California in and for the County of Santa Barbara, has threatened to, and indeed, categorically stated that it intends to, impanel a jury to sit on the further trial of the issue on said Petition for Determination of Heirship now set for the 17th day of July, 1962, et seq., and submit the cause to said jury as the trier of fact, to return a verdict thereon, and said Court will proceed so to do unless restrained and prohibited from so doing by an order of this Court.” Respondent superior court has made no return to the writ; real parties in interest, Granger, appeared by demurrer and Van Ness How Bates by demurrer and answer. Nothing was said at the time of oral argument about a reference or other trial of issues of fact and the record is in such state that we must accept as true the averment that the court will impanel a jury and submit the further evidence to it. (Cf. Mash v. Superior Court, 192 Cal. 258 , 262 [ 219 P. 742 ].)

The prayer of the petition is for a writ forever restraining respondent court “from taking any further proceedings to impanel a jury, or to permit a jury, as trier of fact, to sit in

Let the peremptory writ issue as prayed.

Fox, P. J., and Herndon, J., concurred.