Kann v. Fisher

tions, there was argument as to whether the petitioner or the objectors had the burden of proof on the contested issues, and the judge said that he would “resolve that when I have to.” The objectors offered the will and the inventory and appraisement in evidence and the judge said he would take judicial notice of "anything in the file. ’ ’

The objectors then called Margaret Kann as a witness under section 2055 of the Code of Civil Procedure. She testified in substance that she is the executrix of the will and the widow of the decedent; they were married in Vienna in 1913 and resided in China from 1913 to 1947; during that time they retained their Czechoslovakian citizenship and the decedent accumulated the money with which he acquired the assets listed in the inventory and appraisement as “Community Property” (appraised at $74,290.88) and the stocks and bonds listed therein as “Joint Tenancy Property” (appraised at $287,329.63) ; and that none of her money or property was used to acquire said joint tenancy assets.

Margaret Kann then testified “on her own behalf” in substance that she did not remember whether she and Mr. Kann had signed a document, when they were married in 1913, concerning. the property which they would acquire during their marriage.

Watson G-. Thoms, the attorney for the executrix, was called as a witness by the objectors under section 2055 of the Code of Civil Procedure and testified in part that, after Mr. Kann had died, he (Thoms) received from White, Weld & Co. (stock brokers) a ledger statement showing that said brokers held certain stocks and bonds in the names of the decedent and Mrs. Kann, and subsequently the stocks were shipped to Mrs. Kann, but the bonds had not been shipped to her. The ledger statement, which lists the stocks and bonds which are referred to in the inventory and appraisement, and a shipping invoice listing the stocks, were received in evidence.

Sam Schermer, attorney for the objectors, testified, over the objection of the executrix, with reference to the services rendered by him for which the objectors claimed attorney fees from the estate.

Mr. Thoms then testified as a witness for the executrix. His testimony, over objection by the objectors, was in substance that he had correspondence with White, Weld & Co., wherein he sought to determine whether there was a joint tenancy agreement regarding the stocks and bonds. In reply, White, Weld & Co. sent him a letter, dated May 20, 1963, which

states that papers in their possession show that the stocks and bonds were held in joint tenancy by Mr. and Mrs. Kann, and that the decedent “undoubtedly signed our form agreement [for joint tenancy account] but it appears to have been lost as no copy of it remains in our files which are not complete for those early years of the account. We suggest that Mr. Kann himself may have a copy of this agreement and that it might be found among his papers.” It is also stated that there is enclosed (in letter) “the first ledger sheets” for the account, and letters between White, Weld & Co. and Mr. Kann, “all indicating the registration of the account in joint names with right of survivorship.” The letter (of May 20, 1963), and the enclosed documents, were received in evidence over objection by the objectors.

Each of the “first ledger sheets” for the account has at the top thereof, the names “Edward Kann and Mrs. Margaret Kann as Joint Tenants W R S,” and the sheets list certain stocks. One of the letters, dated June 9, 1949, from White, Weld & Co. to Mr. E. Kann, refers to an account which is not in the “joint names” of Mr. Kann and his wife, and suggests that Mr. Kann transfer such account “out of” his name. It further states that another account (which apparently included the stocks and bonds at issue herein) is a joint account “entitled Edward Kann and Mrs. Margaret Kann as joint tenants with right of survivorship.” Another letter from White, Weld & Co. to Mr. Kann, dated October 11, 1949, requests that Mr. Kann “inform us what Mrs. Kann’s beneficial ownership is in the Joint Account,” and states “We assume that it is 50% but we have no way of confirming this from our files. ’ ’

The court sustained objections to the introduction in evidence by the executrix of a letter dated April 2, 1960, from the decedent to Mr. Thoms with reference to the proposed preparation of a will. In that letter, Mr. Kann requests that Mr. Thoms supply his opinion relative to the wording of a proposed will. The letter includes a statement that when the Kanns were married in 1913 they “signed a legal document at Vienna (Austria), stipulating joint ownership of all properties, which act probably is synonymous with California ‘community property.’ This proviso, in practice, means that all my possessions, primarily my stock portfolios . . . are in joint account. ...”

Some of the findings are in substance as follows: Under paragraph 7 of the will, any federal estate or California

inheritance taxes shall be paid from the residue of the estate. The stocks were not held in joint tenancy by the testator and the executrix on the date of the testator’s death. The stocks were acquired by the testator while he and the executrix were domiciled outside California, or are substitutes of assets so acquired. The testator intended to dispose of all of his property, other than joint tenancies. The testator intended the executrix, who is his widow, to take the residue of his estate after payment of the legacy to Peter Arnovich and the “25% legacy” to his brother and sister. The testator did not intend that the executrix “might take both under the will and against it.” The bond were acquired by the testator during the marriage and while he was not domiciled in California, and were owned by the testator, and were not joint tenancy, on the date of his death. The executrix failed to use reasonable diligence to marshal all of the bonds as assets of the estate, and failed to include in her inventory such of the bonds that she did have in her possession. The services performed by counsel for the objectors caused an increase in the assets passing under the testator’s will by approximately $35,500 (25 percent of $142,050). To the extent of $17,750, said services benefited a person, Alfred ICann, other than the said counsel’s clients. The reasonable value of such service is $1,950. It is just and equitable that the costs of such services be charged against the estate as a whole. Pursuant to stipulation and order Charlotte Fischer assigned her interest in the estate to Ilse Boros and Harry Fisher, and said assignment was duly served on the executrix and filed herein. All of the said assets were acquired by the testator while he was domiciled outside California, and would have been community property of the testator and the executrix if the testator had been domiciled in California at the time the assets were acquired.

Some of the conclusions of law are in substance as follows: Neither the legacy to Peter Arnovich nor the legacies to Alfred Kann and to the assignees of Charlotte Fischer should be diminished by charging them with any portion of the federal estate or California inheritance taxes payable herein. The burden of proving that the stocks and bonds were held in joint tenancy, or at least the burden of going forward with such proof, was on the executrix, as the person asserting the existence of such joint tenancies. The executrix failed to carry .either of such burdens. The stocks and bonds are “quasi-community property” under section 201.5 of the Probate

Code. The executrix has the right under section 201.5 to take one-half of the quasi-community property against the will in lieu of her rights under the will, and, pursuant to section 201.7 of the Probate Code, the executrix is required to elect whether to so take against the will or to take under the will. The executrix shall file an amended inventory which includes as quasi-community property all of the stocks and all of the bonds which, using reasonable diligence, she can find; and she shall file an affidavit showing diligent search for the bonds. The executrix shall file an amended final account, report, and petition for distribution and for allowance of attorney’s fees which shall include all of the assets described in the findings, except those bonds which, using reasonable diligence, the executrix is unable to find.

Before considering appellant’s contentions, it is to be noted that respondents contend that the appeal should be dismissed upon the ground that the executrix is not an “aggrieved party.” They assert that since the notice of appeal refers to “the executrix” only, and does not refer to Margaret Kann (executrix) individually, the appeal should be dismissed because the executrix is not an aggrieved party. (Citing Estate of Strong, 10 Cal.2d 389 [ 74 P.2d 231 ], and Estate of Babb, 200 Cal. 252 [ 252 P. 1039 ].) The order appealed from directs the executrix, among other things, to file an amended inventory, to obtain an amended inheritance tax report, to make a diligent search for the bonds and file an affidavit with reference to those bonds which she cannot find, and to file an amended account, report, and petition for distribution which includes the stocks and bonds. The executrix is an aggrieved party. Respondents’ contention is not sustainable.

Appellant contends that the court erred in ordering the inclusion of the securities in the account in that (1) the objectors had the burden of proving that the securities were not joint tenancy property, and the objectors did not meet that burden, and (2) if the petitioner had the burden of proving that the securities were joint tenancy property, then petitioner met that burden.

“ The burden of establishing a joint tenancy is upon the person claiming it.” (Cordasco v. Scalero, 203 Cal.App. 2d 95 , 104 [ 21 Cal.Rptr. 339 ] ; see Crocker-Anglo Nat. Bank v. American Trust Co., 170 Cal.App.2d 289 , 299 [ 338 P.2d 617 ].) It has also been held that an executor has the burden of proving the correctness of his accounts, rather than placing

ing this from our files." Mrs. Kann testified that none of her money or property had been used to purchase the securities.

"The method of creating a joint tenancy is set forth in section 683 of the Civil Code" (Berl v. Rosenberg, 169 Cal.App.2d 125 , 133 [ 336 P.2d 975 ]), which provides in part as follows: “A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy .... A joint tenancy in personal property may be created by a written transfer, instrument, or agreement. ” In interpreting that section "it has been held that a joint tenancy in personal property can only be created by a writing (California Trust Co. v. Bennett, 33 Cal.2d 694 [ 204 P.2d 324 ]) and the intention to create a joint tenancy must be specifically set forth in the writing." (Berl v. Rosenberg, supra, p. 133. See Cooke v. Tsipouroglou, 59 Cal.2d 660 , 664 [ 31 Cal.Rptr. 60 , 381 P.2d 940 ] ; Cordasco v. Scalero, supra, 203 Cal.App.2d at p. 103; Estate of Hoefflin, 176 Cal.App.2d 609 , 628 [ 1 Cal.Rptr. 642 ] ; Crocker-Anglo Nat. Bank v. American Trust Co., supra, 170 Cal.App.2d at p. 295; Estate of Horn, 102 Cal.App.2d 635 , 639 [ 228 P.2d 99 ] ; Estate of Dean, 68 Cal.App.2d 86 [ 155 P.2d 901 ] ; 13 Cal.Jur.2d, Cotenancy, § 9, p. 296, and § 12, p. 298.)

In the present ease, as above shown, the evidence in support of the alleged joint tenancy consists of ledger sheets of White, Weld & Co. and letters from that company. Other than those documents, there is no written instrument or agreement in evidence which specifically declares an intention to create a joint tenancy in the securities. The securities were not presented in evidence; and none of the records of the corporations, issuing the securities, was presented in evidence. The ledger sheets of White, Weld & Co., relating to a brokerage account, are in the names of Mr. and Mrs. Kann as joint tenants, and there are statements by White, Weld & Co (in correspondence) to the effect that although their records do not include an agreement creating a joint tenancy, such an agreement was "undoubtedly" made since their records show that White, Weld & Co. maintained the account as a joint tenancy account. In a letter from White, Weld & Co., however, to Mr. Kann, White, Weld & Co. requested information as to whether Mrs. Kann had an interest in the account, and stated that they had "no way of confirming this from our files.” Furthermore, the executrix testified that none of her money was used to purchase the securities or the assets that

were used to purchase the securities. The court did not err in finding that the securities were not joint tenancy property. In view of that conclusion, it is unnecessary to discuss respondents’ contention that the court erred in overruling their objection to receiving in evidence the ledger sheets and correspondence. (That objection was made upon the grounds that said documents were hearsay, were merely opinions of White, Weld & Co. that a joint tenancy had been created, and were introduced without foundation testimony by any employee or representative of White, Weld & Co.)

Appellant further contends that the court erred in finding that the securities were quasi-community property under section 201.5 of the Probate Code. She asserts, in addition to her contention that the securities were joint tenancy property, that the securities were "community property” under provisions of the Civil Code of the Republic of China. In her brief appellant states that she does not dispute the finding that the property (securities) was acquired “in the Republic of China” between 1913 and 1947, but she states that the court erroneously concluded that it was “201.5 property” (and thereby allegedly subject to the election requirements of section 201.7 of the Probate Code), and that the court ‘ ‘ should have apprised itself of the law of the Republic of China” under which law such property was community property. Also in her brief, appellant sets forth various provisions of the Civil Code of the Republic of China which allegedly were in effect in 1929. During the hearing, the trial judge said that if counsel intended to rely on Chinese law, then “I want to be advised by some reliable reference.” The judge also referred to various changes in the governments in China (from “Imperial China,” to “Sun Yat-sen,” to “Chiang Kai-shek,” to “Communists”) during the period in question (1913-1947). The executrix did not present any evidence in the trial court with reference to the law of China or indicate that she intended to rely on such law. (See Smith v. Smith, 201 Cal.App.2d 377 , 381-382 [ 20 Cal.Rptr. 95 ].) She cannot properly present the law of China by setting forth in her brief purported quotations from the 1929 version of the Civil Code of the Republic of China. Furthermore, the executrix testified that she and the decedent, while they resided in China, retained their Austrian (Czechoslovakian) citizenship and did not become citizens of China. This contention of appellant is not sustainable.

Appellant also contends that the court erred in construing, as a special bequest, the bequest of 25 percent of the

net estate to the decedent’s brother and sister. She asserts that the ‘‘calendar notes” did not inform the executrix that the court “was considering” any bequest other than the bequest to Peter G. Arnovich as a specific bequest; and, that if she (executrix) had been so informed she would have presented evidence to explain the testator’s intent with reference to the bequest. There was no finding that the bequests were specific bequests. Apparently appellant’s contention is that the court, by concluding that neither the bequest to Peter G. Arnovich nor the 25 percent bequest to the brother and sister should be charged with state inheritance or federal estate taxes, impliedly found that such bequests were “specific” bequests because the testator had provided in the will that “All specific bequests made herein shall be made free of” such taxes, and that such taxes be paid from the “residue.” Under the evidence presented, the court properly construed such provision to mean that the two bequests were to be received free of such taxes, and the taxes were to be paid from the residue. Appellant’s assertion with reference to the calendar notes is not sustainable.

A further contention of appellant is that the court erred in awarding attorney fees to the objector’s attorney, payable from the estate. In Estate of Reade, 31 Cal.2d 669 , 672 [ 191 P.2d 745 ], it was held that the trial court properly awarded attorney fees, payable from estate funds, to the attorney rendering service to a person who successfully objected to an administratrix ’ account on the theory that such services created or preserved a fund which benefited all the heirs. (See Estate of Swanson, 171 Cal.App.2d 437 , 440-441 [ 340 P.2d 695 ] ; Estate of Lundell, 107 Cal.App.2d 463 . 464 [ 237 P.2d 62 ].) In the present case, where, as a result of the objections, the assets of the estate were increased (to include the securities which the executrix had excluded from her account), and where the trial court found that the services of the objectors’ attorney increased the assets, passing under the will and benefited a legatee other than the objectors, the court did not' err in awarding the attorney’s fees.

The order is affirmed.

Fourt, J., and'Lillie, J., concurred.

A petition for a rehearing'was denied August' 30, 1967.