McCarthy v. Superior Court

KNIGHT, J.

Petitioner has applied for a writ of prohibition to prohibit the superior court, sitting in probate, from enforcing by execution or contempt proceedings an order made in a proceeding instituted therein under the provisions of sections 613, 614 and 615 of the Probate Code, in the matter of the Estate of Allie C. M. Osborne, deceased.

The facts are as follows: For many years immediately preceding Mrs. Osborne’s death, which occurred on March 30, 1942, she conducted a real estate and insurance business on Mission Street in San Francisco under the name of Stewart & Osborne, in connection with which she maintained a corn

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mercial account in the name of “Stewart & Osborne, Agent” at the Mission Branch of the American Trust Company. Part of her business consisted of collecting rentals for a great many property owners, which rentals she deposited in her bank account and afterwards drew checks thereon in favor of her clients for the amounts due them. For more than ten years petitioner had been associated with Mrs. Osborne’s business in the capacity of a real estate and insurance salesman, working on a commission basis; and he assisted generally in carrying on the business. During such association they bought and sold considerable real property on their own account as joint tenants. Some of the property was income producing, and a few parcels stood in their names as joint tenants at the time of her death. In buying property it often became necessary for them to borrow money on trust deeds and mortgages; and in selling they frequently accepted deeds of trust and mortgages in part payment; so that at the time of Mrs. Osborne’s death they were receiving income from real and personal property owned jointly by them, and they were also making payments on outstanding joint obligations. Furthermore at the time of Mrs. Osborne's death certain commissions were due petitioner on unpaid insurance premiums.

About two years prior to Mrs. Osborne’s death she executed and delivered to the bank a power of attorney in the usual form required by banks, authorizing petitioner to draw checks on the bank account, and when she became ill and was about to be taken to the hospital, she instructed petitioner to carry on the business for her and to pay the clients of the office from the bank account whatever sums of money were due them. Thereafter and on Saturday, March 28, 1942, petitioner closed the bank account maintained by Mrs. Osborne and transferred the balance therein, amounting to $3,182.31, to a new account which he opened at the same bank in the name of “Stewart & Osborne, by Daniel F. McCarthy.” Mrs. Osborne died on the following Monday, March 30, 1942, and during that week and after her death, petitioner drew . checks on said account to pay a number of the clients the amounts due them as rental collections. At the end of that week and on April 6, 1942, the executor named in her will and his counsel conferred with petitioner, at which time petitioner informed them fully as to what he had done concern