Gershan v. Cradick

California Court of Appeal Dec 21, 1949 No. Civ. 17196Published

Before: White

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Holding. The probate court has jurisdiction to order an executor to return a deposit to an unsuccessful bidder when the executor fails to establish a legal basis for retaining the funds. Findings of fact are unnecessary when the material facts are admitted by the pleadings.

Issues

Whether the probate court erred in rendering judgment without requiring the petitioners to present evidence.
Whether the probate court erred in failing to make findings of fact.
Whether the probate court had jurisdiction to order the executor to return the deposit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The answer of the executor to the petition filed by respondents admitted the receipt and retention of the check and the confirmation of the sale to another and higher bidder. No findings therefore were necessary upon these facts”

“The determinative point, in our view, is that appellant executor neither alleged nor proved, nor offered to prove, any fact or facts which would justify him in retaining the deposit as a forfeit”

“we are of the view that the probate court, with its power of control over the conduct of the executor, had jurisdiction to make the order in question.”

WHITE, P. J.

The executor of the will of Jennie Mesner appeals from an order of the superior court, sitting in probate, directing him to return to the petitioners and respondents a cashier’s check for $8000, representing a deposit by respondents in connection with their bid for the purchase of real property belonging to the estate of the decedent.

The following facts are undisputed:

About October 25, 1948, respondents submitted a written bid to the executor in the sum of $79,500 and delivered to him the cashier’s check in question. On October 28, 1948, the executor filed a return of sale and petition for confirmation with the superior court. Hearing was set for November 15. On November 11, 1948, respondents notified the executor in writing that they rescinded their bid on the grounds of fraud and misrepresentation, and demanded return of the $8,000 deposit. On November 15, 1948, the hearing on the return of sale and petition for confirmation was held. Respondent Harry Gershan, with his counsel, was present in court, but they took no part in the proceedings. Upon the calling of the matter, the executor’s attorney stated that he understood a bidder for the property was in court, and upon the court’s inquiry, one J. P. Singer bid $83,975. There being no other bidders, the court confirmed a sale to Singer. On this same date November 15, the executor deposited the $8,000 cashier’s check in the estate bank account. The respondents having stopped payment thereon, the check was returned to the executor. Upon his refusal to surrender the check, respondents filed a petition and secured a citation returnable before the probate court requiring the executor to show cause why the check should not be delivered up to the respondents. Upon the hearing of the petition the court made the order which is the subject of this appeal.

[267]

Appellant executor urges a reversal upon the following grounds: (1) “ The court erred in rendering judgment for petitioners (respondents) when they presented no evidence in support of their petition and in not requiring them to do so.” (2) “Where findings of fact are required the court cannot render a valid judgment until findings are made and filed with the clerk. ”

Section 1230 of the Probate Code provides that issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions. Where issues of fact are joined in contested probate matters findings are required

Gershan v. Cradick

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WHITE, P. J.

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