Auslen v. Superior Court

McCOMB, J.

Petitioners (Harry, Richard and Donald Auslen) allege that respondents (the Superior Court of the City and County of San Francisco, the Superior Court of Sacramento County, and Judges Arnold and Henry of those courts) are simultaneously asserting jurisdiction over the same

inter vivos

trust. Petitioners seek a writ of prohibition restraining one or the other of respondent courts from proceeding further with respect to said trust. We have issued alternative writs of prohibition temporarily restraining both respondent courts from so proceeding.

Morris Auslen, individually and as administrator of the estate of Harry Auslender, William Auslen, Jr., Kate Auslen Abrahams and Pauline Auslen Lurie are the real parties in interest.

Facts:

Following the death of Harry Auslender, his sister, Celia Appelbaum, created an

inter vivos

trust, to which she assigned, among other assets, her interest in his estate, which amounted to half of the estate. Petitioner Harry Auslen was made trustee. The net income of the trust was to be paid to the trustor for life, and upon her death was to be paid in varying proportions to three of the real parties in interest (Morris Auslen, Kate Abrahams and Pauline Lurie), two of the petitioners (Richard and Donald Auslen), and William Auslen. In the event of the death of one of these beneficiaries, his share was to be paid to the survivors or to certain other persons. The trustee was given authority to terminate the trust after the death of the trustor. Upon termination, the corpus was to be distributed to the persons then entitled to the income in proportion to their respective rights thereto. If any beneficiary attempted to set aside the trust or to invalidate any of its provisions, his share was to be forfeited.

Celia Appelbaum died on January 18, 1959, while the probate of her brother’s estate was still pending. The following day Harry Auslen, as trustee, declared the termination of the trust.

In April 1960 Morris Auslen filed in the Superior Court of Sacramento County in the Auslender estate proceeding a

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