In re Estate of Cornaz

The questions presented in these several appeals, being common to all the cases herein, were consolidated for the purposes of trial and appeal and are submitted upon one record.

Within four months after the death of George, both Frank and Nonie were adjudged to be insane persons and each was committed by the Superior Court of the County of Shasta to the Napa State Hospital for the Insane. L. B. Koehler, brother-in-law of said insane persons, was by orders of said superior court appointed guardian of the person and estate of each. As to Frank, letters were issued May 21, 1934, and as to Nonie letters were issued June 18, 1934.

Lewis continued to live at the ranch home until shortly after the death of George and the commitment of said brother Frank and sister Nonie to the state hospital. There being no one left of the original household able to care for him, he was taken by his brother-in-law, L. B. Koehler, into his home, where he has since resided. His entire estate consisted of a Liberty Bond in the sum of $500. Each of said brothers owned a $500 Liberty Bond which they had purchased many years past. The two brothers and sister who had taken over his entire estate, real and personal, which was of the estimated value of from $10,000 to $12,000, in consideration of their agreements to furnish him shelter and the necessities of life so long as he should live, having been rendered simultaneously unable" to perform their contracts by the intervention of death in the one case and the dual visitations of insanity in the other case, said brother-in-law, by reason of his knowledge of the aforesaid agreements and promises and the affairs of the family into which he had married, undertook to do what Lewis’ two brothers and sister had agreed to do but were rendered unable by said misfortunes to comply with the covenants of their agreements.

The appellant in these appeals is Fred E. Haynes, a stranger to the blood; as the nominee of Mrs. Julia Hivley, a sister of decedent George, Lewis and the two incompetents.

Lewis filed claims against the administrator of George’s estate, and also against the estates of the two incompetents, to enforce payment for his support and maintenance at the rate of $60 per month during the remainder of his life which, computed according to the mortality tables, gave him a life expectancy of approximately nine and one-half years. The total amount which will have been paid at the end of said life expectancy amounts to the sum of $7,190. This

Through his attorney, L. C. Smith, Esq., Lewis gave written notice under date of November 24, 1934, to the heirs and to all persons interested in the estates of said decedent and incompetent persons, in which notice he recited the circumstance of his blindness; the making of said agreements; the conveyance of his property to said brothers and sister; the consideration therefor; the death of George and the incompetency of Frank and N'onie; the failure of compliance with said agreements by reason of the death and incompetency of the other parties thereto; his necessities as to care and maintenance and medical attention and hospitalization when sick, and prayed that the sum of $20 per month be assessed and made a charge against each one of said separate estates (aggre

Julius Cornaz, a resident of the state of Oregon and a brother who hitherto had not figured in the family controversy, filed written objections to said claims of Lewis and also to certain items of the accounts. His objections were placed on the grounds that there was no authority in law to present a claim of the kind presented to the guardian of the incompetent persons; that it was barred by the statute of frauds, section 1973, subdivisions 4 and 6 of the Code of Civil Procedure, and by subdivision 1 of section 339, same code; that the claims were based upon a purported contract with the incompetents known as a personal contract which does not survive the death or the incompctency of the original party who entered into it.

Fred E. Haynes, as the nominee of Mrs. ITivley, filed petitions asking for the revocation of letters of adminstration and guardianship, of whatsoever bind theretofore issued to L. B. Koehler in said matter and prayed that he be appointed in his stead. He set forth charges of waste and mismanagement on the part of L. B. Koehler and alleged that he represented interests adverse to and inimical to the interests of his wards and their estates. He charged that L. B. Koehler corruptly caused and procured the claims of Lewis to be prepared by his attorney at a time when said Lewis was in his care, custody and control and ivas then and there physically and mentally incompetent and incapable of transacting business, thereby violating their trust as guardian and attorney in the premises. A further ground of removal was based on the allegation that L. B. Koehler was never authorized by any competent person who was a relative or heir of said wards or decedent.

The motions to revoke letters of administration and guardianship in said several estates and for the appointment of appellant in place of L. B. Koehler as administrator and guardian, respectively, were likewise denied and disallowed.

As to the sufficiency of the evidence to sustain the finding that the said transfer of Lewis’ property to his two brothers and sister was made in consideration of the agreement that he would be supported and maintained by his grantees so long as he should live, there can be no room for disagreement. Mr. Koehler, the brother-in-law, who had intimate personal knowledge of the family affairs and who was selected as the personal representative of all the parties -whose estates are involved herein, testified to conversations had with all of the brothers and the sister Nonie with respect to the conveyances made by Lewis and the consideration for the same in effect as found by the court. George Darrah, a member of the board of supervisors of Shasta County, intimate friend and adviser of George and a friend of the family for more than thirty years, knew from conversations with George, Frank and Lewis and Nonie that said agreement and transfer had been made and the purposes for which they were made. Nonie, who had been released from the state hospital, was called by the appellant, and she testified that the claim of Lewis was just and should be allowed in accordance with said agreement. Whether she had been restored to competency does not definitely appear, but she was nevertheless called by appellant and her testimony was wholly intelligent. The deed and bill of sale executed by Lewis— unless it can be said that he voluntarily attempted to pauperize himself—corroborates the uncontradicted testimony of the witnesses above named. The finding of the probate court

Appellant asks, as one of the questions presented, whether a "creditor of an insane person may enforce payment of a claim against his estate when the payment of such claim will render the insane person insolvent and thus a charge upon the state. Appellant has cited us to 32 Corpus Juris, pages 708, 709 and 14 Buling Case Law, page 579, and to one or two cases outside our jurisdiction which hold that in cases where the ward has a family the court will not necessarily apply the estate of the ward in payment of his debts. It is said the property of. the ward will not be applied to the payment of his general indebtedness, as distinguished from claims for

The attack on the finding of the court that $60 per month is not excessive for the support of a blind person, who in addition to his affliction is past 70 years of age and whose heart has been weakened by an attack of pneumonia and the toll of years, is without merit. The court may exercise its own knowledge in such commonplace matters. Lewis was recently a patient at a hospital and may need further medical attention at frequent intervals. His necessities will probably multiply in many ways as the days go by.

Appellant claims that Mr. Koehler, the guardian, has taken an interest in Lewis’ welfare which is antagonistic to his duties as guardian of the incompetents. This arises largely from the fact that Koehler knew of the agreements to convey said properties and the reciprocal duty of furnishing support to Lewis. It was claimed that he supplied his attorney with evidence tending to establish said claims and supported them generally. If the guardian of the incompetents had knowledge that Lewis had a just claim against their estates it was his duty to disclose all that he knew to Lewis. A guardian is not charged alone with the duty of protecting his ward’s estate against fraudulent claimants but he is also

We have also considered the objections made to the effect that the guardian who took Lewis into his home expected to be remunerated for his keep, and other charges with respect to the mismanagement of the said estates which appellant assigns as grounds which justify the disqualification of the guardian and administrator from acting as such officer. The probate court passed upon all of these questions of fact, overruling appellant’s objections thereto and its rulings being supported by the evidence we are concluded thereby.

Appellant vigorously assails the order impounding $7,190 from which sum $60 per month will be paid for the support and maintenance of Lewis. The case of Inyo Chemical Co. v. City of Los Angeles, 5 Cal. (2d) 525 [ 55 Pac. (2d) 850 ], is strongly relied upon by appellant as an authority holding that it was error for the court to set aside a lump sum payable on the day of order made; that it should have found “the present value of the future sum computed in order to determine the amount of claims at the time made”. Appellant, by way of illustrating his criticism of the lump sum ■ theory, shows that the yearly interest on the sum of $7,190 would yield at the rate of six per cent $431,40 per annum. No method could be devised in a case such as this that would be free of difficulties. The court here was attempting to make respondent Lewis secure in an income sufficient for his support. There is nothing grossly inequitable, or at all inequitable, about the order impounding approximately $2,400 to be paid by each estate. There is evidence to the effect that the value of the property which Lewis conveyed was between $10,000 and $12,000. If Lewis had been charged the rates based on appellant’s figures as to what would be a reasonable charge for his keep while in

The Inyo Chemical Company case is wholly different from the instant case in its facts. That case was one involving the value of 90,000 tons of destroyed trona estimated at the selling price of the ore less the cost of production extending into the future for a period of thirty-six years. The court awarded as damages the total profits which would have been made during said period as profits to be paid in a lump sum. This court held that the trial court adopted an erroneous method of computing damages and ordered the case reversed with instructions “to take competent evidence to establish the present value of those profits”. Here the impounded fund had its inception in property furnished by Lewis. The trona case sounded in damages. The trona case was an action at law; the instant case is within the equity jurisdiction of the probate court. Section 953 of the Probate Code (formerly see. 1648, Code Civ. Proc.), provides that “If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established or absolute, must be paid into court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over or distributed as the circumstances of the estate require. ’ ’ Miller v. Miller, 171 Cal. 269 [ 152 Pac. 728 ], presents a situation wholly different from the one before us. There two actions were brought by the mother and the sister, respectively, of E. O. Miller, deceased. The actions were based on the rejection of claims against the estate of E. O. Miller, deceased. Said E. 0. Miller and his two brothers signed a writing by which each agreed to deposit $480 in a certain bank on October 15tli of each year. From this fund the mother and sister were to draw $75 and $50, respectively, on the first day of each month. The concluding paragraph of said instrument read:

“We consider this agreement binding upon us while living and chargeable against our several estates in case we should pre-decease said or either of said beneficiaries.”

During the lifetime of E. 0. Miller the payments were regularly made and after his death one payment was made on behalf of the estate. Before the fifteenth day of the following October the plaintiffs filed claims against E. 0. Miller’s estate. The court held the claims were for “moneys to become due and payable” each year as “per the attached agreement”. The claims were rejected and suit was instituted to establish the right of each plaintiff to the allowance of her demand as a contingent claim against the estate.

The matter came before the court upon demurrer. This court held that while it was proper to present a contingent claim before it became due, an action thereon may not be maintained until after the happening of the contingency. It was therefore held that the action was prematurely brought. Another reason given for the court’s decision was that the claims were of such a nature that the court could not by any possibility determine what the segregated amount would be, if absolute. The decision reasoned that if the claimants should have died before the next instalment should have been due, under the agreement nothing would ever have been payable by the estate, in view of the contract and obligations created by it. Among the many points of distinction between the Miller case and the instant case, it will be observed that there was nothing due in the Miller case, while in the instant case there was a considerable sum due on a continuing claim at the time it was allowed. Death of Lewis alone could terminate payment". The mortality tables, which have in recent years become universally adopted as the method of determining life expectancies, made it reasonably certain that Lewis’ expectancy of life was 9.47 years. The vital and material distinction between the two cases is pointed out in the Miller case itself. It is there expressly stated that the equity side of the court may be invoked to protect the owners of contingent claims which were mature after the period within which distribution may take place. It there expressly said: “These complaints before us are not bills in equity. While each asks for a determination of the status of the claim upon which suit is brought, each is frankly based upon a rejected demand for moneys not yet due, and

Respondent, as additional grounds for the affirmance of the orders herein, calls to our attention the finding of the probate court to the effect that there was an equitable compromise made as between the attorney of Lewis and the guardian. This is based on the substantial grounds that *x trust arising out of an express contract existed in favor of Lewis, and if his claim was repudiated he would be entitled to bring an equitable action to impress said trust upon the properties held by said wards. That such an action, aside from its merits, would have retarded the settlement of said estates in which all the actors were well advanced in years, is obvious. The court was fully informed as to the likelihood and merits of such an action and was influenced by that contingency, as well as by the justice of the matter. That the probate court was satisfied that the guardian and administrator was acting in good faith at every step of the proceedings and for the best interests of all parties herein is made certain by its findings. The matter originally came before Honorable A. F. Ross upon presentation for the allowance of said claims. Later the settlement of the account, was heard by Honorable H. S. Gans. Much time was given by each to the consideration of said matters.

If appellant’s prediction that Lewis will not survive the expectancy of nine and a half years should come true, the residue of the impounded fund will revert as assets of said estates. If he should live that long, it cannot, be said that $60 per month for his maintenance is an extravagant allowance. We are of the view that the decision follows the lines of natural justice, and is in harmony with the modern trend of decisions dealing with the question of contracts entered into for the support and maintenance of the aged, sick and unfortunate.

It may finally be said that both judges who heard the matter were familiar with every phase of said controversies, and each was fully considered by them in several chambers proceedings, all parties being present, and in formal court sessions. Both judges arrived at the same conclusion. In

Upon an examination of the case as disclosed by the record we are in agreement with the court’s conclusion.

The orders and matters herein appealed from are affirmed.

Curtis, J., Thompson, J., Shenk, J., Waste, C. J., Lang-don, J., and Edmonds, J., concurred.

Rehearing denied.