Estate of Quinn

43 Cal.2d 785 (1955) Estate of ETHEL C. QUINN, Deceased. EDMUND G BROWN, as Attorney General, etc., Appellant,

v.

PRESTON HATCH, as Guardian, etc., Respondent.

S. F. No. 18964. Supreme Court of California. In Bank.

Jan. 14, 1955. Edmund G. Brown, Attorney General, W. R. Augustine and Wayne D. Hudson, Deputy Attorneys General, for Appellant.

Robert E. Hatch and Leighton Hatch for Respondent.

SPENCE, J.

This is an appeal by the attorney general from an order denying his petition to determine heirship. (Prob. Code, 1080.) He previously attacked this ruling in a mandamus proceeding, contending that the superior court sitting in probate had erroneously failed to take jurisdiction of the heirship issue. We held that the court had acted in disposition of that issue when it determined that the "attorney general [had] no standing to petition as an heir"; and we further held that his remedy lay in an appeal from the adverse order. (Attorney General v. Superior Court, 41 Cal.2d 249 [259 P.2d 1].)

The testatrix by her will left certain money "in trust" to her husband and another, and "at their deaths ... to charity," naming neither a specific charity nor a trustee. Both legatees predeceased the testatrix. The will was admitted to probate. Thereafter the attorney general filed his "petition for the determination of interest in the estate," alleging that the will created a public charitable trust, which would not be allowed to fail for want of a trustee (Estate of DeMars, 20 Cal.App.2d 514, 516 [67 P.2d 374]; Estate of Clippinger, 75 Cal.App.2d 426, 434 [171 P.2d 567]; see 14 C.J.S. 27, p. 460), and that he, acting for the state as parens patriae, sought to protect that trust. (People v. Cogswell, 113 Cal. 129, 136 [45 P. 270, 35 L.R.A. 269]; see 5 Am.Jur. 17, p. 246; notes 62 A.L.R. 882; 124 A.L.R. 1237, with cases cited.) Respondent, an heir who would inherit the estate in the event of intestacy, objected to the attorney general's petition on the ground that he was not authorized to initiate such proceeding for the determination of the heirship issue. We have concluded that respondent's position was well taken, and that the court's order denying the attorney general's petition must be affirmed. [787]