Malcolm v. Stevens

SHINN, Acting P. J.

Francis Malcolm Cropper died intestate in the city of Los Angeles, leaving a large estate consisting of personal property. His only heir at law is Theodore Malcolm, a cousin, who resides in the State of New York. The public administrator, as administrator of the estate, filed his accounts and his petition to determine heir-ship and for partial distribution. When the petition came on for hearing, Tina Stevens, appellant herein, appeared and objected to any order of partial distribution. She alleged that she was an intimate friend of decedent and a foster daughter of his aunt, Mrs. Edwin Stevens; that in the month of June, 1923, at the request of decedent, she entered into a written agreement with him by the terms of which she agreed that she would forsake her theatrical profession and devote her life to maintaining a home for Mrs. Edwin Stevens for as long as Mrs. Stevens lived, and after the death of Mrs. Stevens that she would maintain a home and care for the said Francis Malcolm Cropper until his death, rendering filial services, society and affection, and that in consideration thereof the said Francis Malcolm Cropper agreed that he would leave a will at the time of his death making her his sole beneficiary of whatever estate he might possess at the time of his death; that in reliance upon the agreement, she gave up her theatrical profession and faithfully performed the agreement on her part until the death of Mrs. Stevens, and thereafter rendered full performance to decedent, until his death on March 15, 1946. She prayed for an order that she be declared the sole beneficiary of his estate, that the contract be specifically enforced and that the administrator or anyone else having estate of the decedent in his possession, be declared a trustee holding the same for her use and benefit. She also alleged that she had instituted in the Superior Court of Los Angeles County, an action in which she sought spe-'

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cific performance of said agreement; that the action had been removed to the federal court, a motion to remand was pending, and that the action had not been tried. Upon the hearing for partial distribution, the court sustained an objection to an offer of appellant to prove the facts alleged in her objections, holding that the issues raised thereby were not within the probate jurisdiction of the court in the estate matter. The estate was found to be in condition for partial distribution and the same was ordered. Tina Stevens has appealed and seeks a reversal of the order for partial distribution.