Vai v. Bank of America

SHEPARD, J.

In this cause appellant Tranquilla Vai is the widow of the deceased Giovanni Vai. They married in Italy in 1907 and after coming to America as practically penniless immigrants in 1912, acquired substantial community property. In 1953, they signed a property settlement agreement but were never divorced.

February 14, 1957, Giovanni died and his will was admitted to probate on petition of the named executors in the Superior Court of San Bernardino County, where said probate matter is still pending. March 18, 1957, the widow-appellant filed an action in the Superior Court of Los Angeles County asking for rescission of said property settlement agreement on the ground that appellant was induced to sign it through fraud and coercion. She named as defendants, among others, the executors and the testamentary trustee named by said deceased’s will, which is under probate in San Bernardino County. On August 9, 1957, the appellant filed in said probate matter in the San Bernardino Superior Court her “Petition for Decree Determining Interests in Estate.” In the rescission matter in Los Angeles County, said executors were never served but, after appellant’s petition for heirship proceedings was filed in the San Bernardino County probate proceedings, said executors and trustee voluntarily appeared in the rescission action in Los Angeles County and the cause was set for trial. The material allegations relating to marriage, acquisition of property, signing of property settlement agreement, fraud, coercion, and appellant’s claimed community and heirship interest are substantially the same in both the complaint for rescission in Los Angeles County and the heirship petition filed in probate proceedings in San Bernardino County.

After the rescission case had been set for trial in Los Angeles County, said executors and trustee interposed in the San Bernardino heirship proceedings the plea of “another action pending” by which they sought a temporary order that said heirship proceedings should be suspended until the rescission action in Los Angeles County could be tried and determined. The nature of this allegation was that the Los Angeles County cause had been filed by this appellant, that it was at issue and

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later to be tried, and that appellant ought not to be permitted to force an heirship proceeding in the probate matter in San Bernardino County until the rescission action which appellant had herself started, initially, in Los Angeles County could be heard and determined. The Superior Court of San Bernardino County, sitting in exercise of its probate jurisdiction, upheld said plea of the executors and trustee, and signed and filed an “interlocutory judgment” by which it was ordered that there be no further trial or hearing on the “Petition For Decree Determining Interests in Estate” until a final determination of said rescission action now pending in Los Angeles County. In the interim, in order to preserve the status quo of the estate for the protection of appellant, the executors were ordered to make no final distribution of the estate property. From this interlocutory judgment the widow Tranquilla Vai appeals to this court.