Michels v. Pacific Tile & Porcelain Co.

18 Cal.App.2d 201 (1936) In the Matter of the Estate of JOHN MICHELS, Deceased. PETER MICHELS, Appellant,

v.

PACIFIC TILE & PORCELAIN COMPANY, Respondent.

Civ. No. 11252. California Court of Appeals. Second Appellate District, Division Two.

December 18, 1936. Irl D. Brett for Appellant.

Richard F. Bailey and Ralph C. Curren for Respondent.

Wood, J.

This is an appeal from an order of the probate court directing partial distribution of certain assets of the estate of John Michels, deceased, to respondent Pacific Tile & Porcelain Company. John Michels died intestate and Mary T. Michels, surviving spouse, was appointed administratrix of the estate. All of the property in question is community property and Mary T. Michels is sole heir. A contract was entered into on April 2, 1935, by Mary T. Michels and Mary T. Michels as administratrix, designated as the first party, and Pacific Tile & Porcelain Company, designated as the second party, whereby the first party agreed to sell to the second party a number of promissory notes executed by Globe Tile & Porcelain Works, Inc. These notes, although barred by the statute of limitations, were secured by a trust deed upon certain real property. The real estate in question was not of sufficient value to pay the amount of these and other notes for which it had been made security. All of the notes in question together were appraised by the inheritance tax appraiser as of the value of $5,000. The party of the second part agreed to give its note in the sum of $5,000 in payment. It was provided that "this agreement is subject to the approval of the Probate Court of Los Angeles County, in the Matter of the Estate of John Michels, Deceased, and Party of the First [203] Part agrees to file at once a petition and bring the same on for hearing at an early date, in order to obtain the necessary court approval authorizing her to execute this agreement and carry out the terms thereof to completion". The note for $5,000 was executed and delivered by Pacific Tile & Porcelain Company. Thereafter a petition was filed in the probate court by the administratrix denominated "petition for instructions and for authority to compromise a debt". Approval was sought for the transfer of the notes in question in accordance with the terms of the agreement. This petition was granted on April 15, 1935. Mary T. Michels individually executed on October 5, 1935, an assignment in favor of Peter Michels of an "undivided two per cent interest in and to my interest in the estate of John Michels, deceased". Peter Michels, appellant herein, objected to the petition for partial distribution but the trial court held that title to the notes had passed to respondent.