Kay v. Superior Court

181 P.2d 1, 30 Cal. 2d 215, 1947 Cal. LEXIS 163

• Court: California Supreme Court
• Decided: June 2, 1947
• Docket: S. F. No. 17387
• Status: Published

Opinions

TRAYNOR, J.

In this certiorari proceeding, petitioner seeks annulment of an order of the probate court confirming the sale of his home property. The sale was made while petitioner was incompetent, but he has been restored to capacity since the order of confirmation of sale. Before his commitment he used the property both as a home and as an office where he practiced as a physician.

Petitioner’s guardian sold the property under the authority of section 1530 of the Probate Code: “If ... it is for the advantage, benefit, and best interests of the estate or ward or of such members of his family as he is legally bound to support and maintain, his guardian may sell any of his real or personal property for any of such purposes, subject to authorization, confirmation or direction by the court as hereinafter provided.”

A guardian’s sale is not effective, however, until it is confirmed by the court. (Kier Corp. v. Treasure Oil Co., 57 Cal.App.2d 829, 842 [136 P.2d 59].) Probate Code, section 785 (see Prob. Code, § 1534) provides that “Upon hearing the court must examine into the necessity for the sale, or the advantage, benefit and interest of the estate in having the sale made, and must examine the return and witnesses in relation to the sale; and if it appears to the court that good reason existed for the sale, that the sale was legally made and fairly conducted . . . the court shall make an order confirming the sale and directing conveyances to be executed; otherwise it shall vacate the sale and direct another to be had, of which notice must be given and the sale in all respects conducted as if no previous sale had taken place. . . .” The petition for confirmation of sale filed by petitioner’s guardian recited that the sale was for his best interests and the court confirmed the sale on that ground.

Petitioner, conceding that an order confirming the sale of a ward’s property is not appealable (Guardianship of Reser, 57 Cal.App.2d 935, 936 [135 P.2d 709]; Prob. Code, § 1630), now seeks annulment of the order on certiorari. His position is stated as follows: “ [I]t seems well settled (and there appears to be no case holding to the contrary) that when a statute authorizes prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction and certiorari will lie to correct such excesses.” (Rodman v. Superior Court, 13 Cal.2d 262, 269 [89 P.2d 109].) The probate court derives its procedure and jurisdiction from statutes and is empowered to confirm the sale of a ward’s property only if one of the statutory grounds is present. Here there is no evidence to support the probate court’s finding that the sale was in petitioner’s best interests, which was the alleged statutory ground for confirming the sale. The probate court therefore exceeded its jurisdiction and certiorari will lie to annul its order confirming the sale.

We are unable to agree with petitioner’s analysis of the issues presented by this case. The quotation from the Rod-man case is not applicable to this situation. In the Rodman case the superior court applied cash bail to the defendant’s fine instead of returning it t.o the bondsman as required by the Penal Code. In the opinion this court illustrated the meaning of the rule quoted above by citing cases in which a lower tribunal made an award larger than that permitted by statute or extended a litigant’s time to plead for a period in excess of the time authorized by the code. (Rodman v. Superior Court, supra, at 269-270.) These acts were clearly in excess of the prescribed statutory authority. The present case is one in which the probate court made a finding and issued an order in strict conformity with its statutory grant of authority.

According to Probate Code, section 1530, the decision to sell the ward’s property must first be made by the guardian. The sale must then be presented to the probate court for confirmation. In the proceeding for confirmation, Probate Code, section 785, requires that the court shall confirm the sale, after hearing and examination, “if it appears to the court that good reason existed for the sale.” It is clear, therefore, that the determination whether there was sufficient evidence upon which to base the order lies within the discretion of the probate court. That determination is not reviewable on certiorari. (Howard v. Superior Court, 25 Cal.2d 784, 788 [154 P.2d 849].)

In Abelleira v. District Court of Appeal, 17 Cal.2d 280 [109 P.2d 942,132 A.L.R. 715], the rule stated in the Rodman case was shown to rest upon a broader principle. “Speaking generally, any acts which exceed the defined power of á court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.” (P. 291.) Before setting forth the foregoing principle, the opinion in the Abelleira case gave numerous examples of such excesses of jurisdiction. In every case cited as illustrative, the lower tribunal had no power to proceed in the manner attempted. None of the cases was concerned with a situation where, as here, the court performed the very function and made the very finding that was intended by the statute. There is nothing in the Abelleira or Rodman cases, therefore, to suggest that certiorari will lie where the only excess of power complained of is the entering of an order unsupported by evidence.

This court was confronted with substantially the same problem in Howard v. Superior Court, 25 Cal.2d 784 [154 P.2d 849]. In that case the probate court, acting under section 473 of the Code of Civil Procedure, vacated its previous order allowing fees for counsel. The order vacating the allowance was not appealable. The attorneys to whom the fees were allowed sought a writ of certiorari to annul the order vacating the allowance. They contended that the court could vacate an order under section 473 only on the prescribed statutory grounds and that a study of the record would show that the court actually vacated the order on another ground. Our opinion states: “The petitioners’ claim as to lack of a sufficient affidavit of merits, inadequacy of the showing of mistake, etc., and insufficiency of the proposed objections to the allowance of fees, do not affect the jurisdiction of the court to act on the petition, but merely indicate the possibility of error in the exercise of that jurisdiction. The motion was made upon statutory grounds and, assuming that the trial court should have decided that the mistaken belief of the husband and his counsel was due to their negligent failure to ascertain the facts with reference thereto, the error can be reviewed only on appeal.” (P. 788.)

The opinion distinguished those eases annulling orders of trial courts where the orders were not made pursuant to any of the prescribed methods of procedure as defined by the Code of Civil Procedure. “Hence it should be clear that the factual situation of these cases is entirely different from a ease where the court is asked to act on proper grounds and does so act, and the claimed error is that the court abused its discretion in finding that there was a mistake or excusable neglect, etc., warranting relief under section'473. In other words, if the court sets aside its final order on a ground not authorized or recognized by the statute, it may be acting in excess of its jurisdiction, but if it does so on a ground authorized by the statute, the possible insufficiency of the evidence to support its action does not go to its jurisdiction, but is a basis for review on appeal. So long as there is some showing in support of the trial court’s action, the quantum of proof cannot be weighed on certiorari.” (P. 789.)

Petitioner contends, nevertheless, that this court should search the record to determine whether there is evidence to support the order, on the ground that the probate court is a court of limited jurisdiction. His theory is that a reviewing court should treat the decrees and orders of the probate court as though they had issued from an administrative agency and thereby demand that there be some evidence to establish the “jurisdictional fact.”

It is not' necessary here to determine whether or not the finding that the sale was in petitioner’s best interests would constitute a “jurisdictional fact,” as that phrase is used in administrative board cases. The probate court is not an administrative tribunal in any sense of the term. Although the procedure and jurisdiction of the superior court sitting in probate are limited by the provisions of the Probate Code, and in that sense “limited and special” (Texas Co. v. Bank of America etc. Assn., 5 Cal.2d 35, 39 [53 P.2d 127]), that court is not an inferior tribunal of limited jurisdiction. In certain probate proceedings the superior court has only the power given it by the Probate Code and no more. (McPike v. Superior Court, 220 Cal. 254, 258 [30 P.2d 17].) This does not mean that the Legislature has created a new court. The Legislature has, in exactly the same manner, circumscribed the jurisdiction of the superior court in many of its other proceedings. Nevertheless it remains a court of general jurisdiction.

The control by the Legislature over probate jurisdiction does not, therefore, lessen the dignity of decrees and orders of the superior court sitting on' probate. “. . . the decrees of the probate court in matters, which like these, are clearly within its statutory grant of jurisdiction, have the same effect, and are supported by the same presumptions on collateral attack, as the judgments of a court of general jurisdiction.” (Estate of Keet, 15 Cal.2d 328, 335 [100 P.2d 1045] ; see, also, Marlenee v. Brown, 21 Cal.2d 668, 677 [134 P.2d 770] ; Texas Co. v. Bank of America etc. Assn., supra, at 41; Burris v. Kennedy, 108 Cal. 331, 336 [41 P. 458]; Wood v. Roach, 125 Cal.App. 631, 635 [14 P.2d 170].) Even though the probate court exercises a particular statutory jurisdiction, it has many incidental powers in pursuance thereof. (See Bennett v. Forrest, 24 Cal.2d 485, 491-492 [150 P.2d 416]; Dobbins v. Title Guar. & Trust Co., 22 Cal.2d 64, 67-69 [136 P.2d 572].) The orders and decrees of the probate court are treated with the same dignity on appeal as any other orders and judgments of the superior courts. (Estate of Caspar, 172 Cal. 147, 149 [155 P. 631]; Estate of Snowball, 157 Cal. 301, 305 [107 P. 598].) A fortiori they receive equal treatment on certiorari. (Howard v. Superior Court, 25 Cal.2d 784, 788 [154 P.2d 849]; Lilienkamp v. Superior Court, 14 Cal.2d 293, 301 [93 P.2d 1008]; Heydenfeldt v. Superior Court, 117 Cal. 348, 351 [49 P. 210].)

Although we have found it unnecessary to look to the record for evidence in support of the probate court’s finding, the writ of certiorari has already issued and we have the record before us. It is at once apparent, upon examining that record, that the court did not enter its order without evidentiary basis. In fact, even if an appeal were possible in this case it is doubtful whether we could, under the holdings of this court governing the scope of review of decisions based upon conflicting evidence, reverse the order.

Petitioner was committed to Napa State Hospital in January, 1946, and transferred to the United States Veterans Administration Facility in Palo Alto in March, 1946. His wife had previously been committed to a mental hospital in 1940. The Anglo California Bank was appointed guardian of the estates of both incompetents and, in April, 1946, sold the home they owned in joint tenancy for $40,400. The petition for confirmation of the sale was filed on April 15, 1946. The hearing on the confirmation began on May 3, 1946, but two continuances were granted in order to afford petitioner an opportunity to appear with counsel and present his objections to the sale.

M. L. Glover, acting assistant trust officer of the bank, was examined on behalf of the guardian. He testified, in part, as follows: ‘ ‘ Q. Do you believe it to be to the advantage and best interests of Dr. Kay’s estate, and Dr. Kay, that the property be sold? A. We do.” This testimony was later substantially repeated: “Q. As representative of the Bank, representing the Bank, they feel that the property should be sold, that it is to the best interests of the estate, and of the incompetent? A. Yes.” Glover was also questioned with regard to the interest of petitioner’s wife: “Q. Yon believe it to the best interest of the incompetent and her estate that the property be sold? A. Yes.”

Glover admitted on cross-examination that no effort had been made to lease the property, although it could readily have been leased. He stated also that the bank had not made inquiries of the hospital staff in order to ascertain petitioner’s condition before selling the property. In fact, the hospital staff had determined preliminarily on March 22d that petitioner was sane and competent. Further consultations were necessary, however, and he was not discharged as sane and competent until May 13th, after the hearing on confirmation of sale had begun. Glover also testified that petitioner had about eight or ten thousand dollars in securities in addition to disability payments from an insurance policy, but that these payments would cease upon petitioner’s recovery. According to Glover, the accepted bid constituted the highest price obtainable for the property.

Petitioner produced two medical witnesses, one of them from the hospital at Palo Alto. The latter testified that petitioner was sane and competent and had been given a certificate by the hospital to that effect. He was of the opinion that all sane men are competent, thus demonstrating unfamiliarity with the legal distinction between competency and sanity (Prob. Code, § 1460), but he stated definitely that the hospital staff had determined that petitioner was not only sane but competent to handle business affairs.

The other medical witness was also of the opinion that petitioner was sane and competent but his opinion was qualified: “Q. And what is your opinion- A. I believe that he could go back to work and take care of himself and his property, if he doesn’t go too fast and too hard. Q. Do you think that his condition is such—in other words, would he be able, in your opinion, to return to active practice today ? A. Today—not today, right away—I would advise that he take quite a few months further rest before going into practice. Q. At. the present time, as of today, you would say that he is not able- A. He might be able to get by with it, but I would think it better for him to go slowly. Q. And you think that he is able today to handle his business affairs, his money, his insurance, stocks and bonds, and things of that sort? A. That is something I would hesitate to say, because I don’t know enough about those things—a man might be quite capable of doing one thing, and his judgment might not be good in business matters. Q. Might it impede Ms further recovery if he were to be saddled down now with financial matters, financial worries—on the stock market, for example, and the matter of handling money ? A. That would add to Ms difficulties."

The witness had testified earlier that the sale of petitioner’s home would be detrimental to him, but this opinion was also qualified on cross-examination: “Q. I will ask you if you read this part of the Veterans Bureau report—on the history of the case—these excerpts were, about the neighbors sending messages to the District Attorney’s office relative to peculiar actions—visiting homes of neighbors throughout all hours of the night—ringing doorbells—making inquiry about property—all nine rooms of his home being strewn-with papers, decayed food lying all about the kitchen—I call your attention to those portions of the report; you read that before you testified! A. I did. Dr. Kay [interrupting] : That is not true sir. . . . Q. When you testified on Mr. Lang’s [petitioner’s attorney] question concerning the effect it would have on Dr. Kay in not moving back into this same house, did you have in mind then the facts of the case concerning the neighbors’ actions at the time referred to? A. I was not thinking of them particularly; I merely felt this: that any man who was moved out of his house these days, and had difficulty getting another one, would not be affected favorably thereby—how much effect it would have on him, or how much it would do to him, I couldn’t say. Q. In other words, you would say the same of any person ? A. I would say the same about anybody. Q. Sane or insane, competent or incompetent? A. Yes."

The trial court, after hearing the evidence and the arguments on behalf of petitioner, the guardian, and the purchaser, ordered confirmation of the sale. Subsequent to the order of eonfiirmation, on June 7, 1946, petitioner was restored to capacity by an order of another department of the superior court.

It is clear even from the foregoing account of the record that the probate court had some evidence upon which to base its finding that the sale was for the best interests of petitioner. The evidence shows that a good price, the best obtainable, was bid for the house and that petitioner’s finances are not so secure that the court could be certain of his ability to maintain a large house after his insurance disability payments cease, particularly in view of the medical testimony. Petitioner had between eight and ten thousand dollars in stocks and his income consisted primarily of insurance disability payments. The evidence also showed that the neighborhood was unfriendly to petitioner. The court may reasonably have concluded that his return to this neighborhood would be inimical to his best interests.

The probate court was also fully aware that even if the sale of petitioner’s share of the property were vacated, the purchaser might remain the owner of his wife’s joint interest. In that event petitioner would not be entitled to exclusive possession of the property but would be a tenant in common with a stranger. The representative of the bank, Glover, testified that the sale of the wife’s share of the property was for her best interests and there is no contest over the order of the probate court confirming the sale of her interest.

Finally, the representative of the guardian stated that he considered the sale to be for petitioner’s best interests. Whether or not an objection to this opinion, if made at the hearing, would have to be sustained (see 7 Wigmore on Evidence, § 1960), it is clear that in the absence of any objection by petitioner, the opinion was properly considered by the court. (Powers v. Board of Public Works, 216 Cal. 546, 552 [15 P.2d 156] ; Parsons v. Easton, 184 Cal. 764, 769 [195 P. 419]; Williams v. Hawley, 144 Cal. 97, 102 [77 P. 762]; Abbott v. Limited Mut. Comp. Ins. Co., 30 Cal. App.2d 157, 163 [85 P.2d 961].)

Petitioner contends that this opinion is worthless because he later recalled Glover to the stand and asked: “Q. Did you have any reason to make any investigation at that time? Had anyone informed you that Dr. Kay had made any application for restoration? A. No. If there had been, we would have made no effort to sell the property.” Petitioner interprets this testimony as an admission that the sale was not for his best interests and that the guardian would not have made the sale had it been advised that petitioner would soon be discharged from the institution. This testimony is open to another interpretation, however, consistent with the guardian’s position that the sale was for petitioner’s best interests. If a petition for restoration to capacity has been filed, a guardian in all likelihood would hold in abeyance any plans to sell the property. He would have to envisage the possibility that a judgment of restoration to capacity, with accompanying revocation of letters of guardianship and order to restore the estate of the ward, might follow before the sale could be confirmed. If a contrary judgment were made, it might serve to confirm his conclusion that a sale would be for the best interests of the ward. The probate court could reasonably construe Glover’s statement as a declaration that negotiations for sale would not be initiated if application was made for restoration to capacity. The petition for restoration was not filed until the day that Glover testified in the hearing for confirmation of the sale. His opinion that the sale was for petitioner’s best interests, therefore, is not necessarily altered by his later statement that he would not have made an effort to sell the property after the filing of a petition for restoration.

Petitioner finally contends that since he was on the verge of restoration to capacity at the time of the confirmation, the court should have granted him another continuance until after the hearing and determination of the petition for restoration. But the probate court could not assume, from the discharge and subsequent petition for restoration, that petitioner was sane and capable of taking care of himself and his property. The discharge acts as a restoration to capacity only where no guardian has been appointed. (Welf. & Inst. Code, § 6729.) In petitioner’s case a guardian had been appointed and he could be restored to capacity only by the procedure under section 1470 of the Probate Code. (In re des Granges, 102 Cal.App. 592, 599 [283 P. 103]; see Vigne v. Superior Court, 37 Cal.App.2d 346, 352 [99 P.2d ,589].) His petition for restoration was subject to contest (Prob. Code, § 1472), and the court before which the petition was brought could have denied restoration to capacity upon proper grounds irrespective of the discharge. (Guardianship of Gordon, 56 Cal.App.2d 523, 527 [132 P.2d 824].)

Although the probate court might have granted petitioner a continuance, the propriety of its failure to do so cannot be raised in this proceeding. Petitioner was granted two continuances in order to allow him an opportunity to be present with counsel and to prepare his objections to the confirmation. The trial court, of course, has a wide discretion in granting or denying continuances, and its decision is not even disturbed on appeal, unless a clear abuse of discretion is shown. (Marcucci v. Vowinckel, 164 Cal. 693, 695 [130 P. 430].) It need hardly be added that on certiorari we do not review matters within the discretion of the lower court. (Spanach v. Superior Court, 4 Cal.2d 447, 450 [50 P.2d 444].)

A ward’s inability to appeal from an order confirming the sale of his property does not, however, leave him wholly without a remedy. The relationship of guardian and ward is a highly fiduciary one. The conduct of a guardian is carefully regulated both by statute and case law. (Prob. Code, § 1400.) Were the guardian as derelict in its custodianship of petitioner’s estate as petitioner contends, it could be held to account in a proper proceeding brought on behalf of the ward. Were there collusion between the guardian and the purchaser, though there is no inkling of it in the record, petitioner could seek redress through an action to impose a constructive trust on his property. (See Restatement, Restitution, § 201.)

The order is affirmed.

Gibson, C. J., Edmonds; J., and Spence, J., concurred.