Hubbs v. Department of Mental Hygiene

MOORE, P. J.

In this action the probate court held that it had no jurisdiction to try title to a certain tentative trust fund; that title to such fund must be tried in another forum. However, the title to such fund was in effect tried. Now, appellant contends that (1) no one asked the trial court to determine title; (2) in fact, no question as to title exists; (3) there is no dispute between the guardian and appellant.

Henry Cuen at an advanced age became mentally and physically incapacitated on January 8, 1951. Amelia McFarland, his sister, was appointed guardian of his estate and person on January 30, 1951. His property consisted of a savings account in the sum of $3,751.89; a mortgage owing from Elmer Moorehead and Chloe Hubbs Moorehead in the sum of $2,594.74; two pieces of improved realty appraised at $5,800 and $5,700 respectively; and also a deposit in the sum of $4,783.82 in the Coast Federal Savings and Loan Association in the name of “Henry Cuen, trustee for Mrs. Chloe Hubbs, niece. ’ ’

By such deposit, the incompetent clearly intended to retain ownership thereof but that in the event his niece should survive him, the entire trust fund should go to, and become her property. He did not promptly pass from the mundane scene, but survived and, though he became a helpless incompetent, still survives the ravages of time. However, as time marched on, the care of him ate into his modest estate until finally by June 9, 1954, all the assets of the estate had been exhausted for his medical expenses and the maintenance of the

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real properties except (1) the deposit with Coast Federal tentatively in trust for Mrs. Hubbs

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and (2) the two pieces of real property. On the last-mentioned date, the court authorized the guardian to draw $2,000 out of the tentative trust fund to repair the real property. But such fund was not withdrawn.

On June 7, 1955, Mrs. Hubbs filed a petition asking that all other assets of the estate be exhausted before any drafts be made on the tentative trust fund, on the basis that she was the beneficiary of such trust and had an interest in same. The basis for her petition was Civil Code, section 3433, relative to the rights of different creditors, to wit: