In Re Estate of Pendell

California Supreme Court Sep 23, 1932 No. Docket No. L.A. 13059.Published

Before: Preston, Waste

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Holding. The trial court committed prejudicial error by failing to make and sign written findings of fact upon the issues presented in a probate proceeding, as required by the Code of Civil Procedure.

Issues

Whether the trial court is required to make written findings of fact in probate proceedings when issues of fact are joined.
Whether an appellate court should exercise its authority under section 956a of the Code of Civil Procedure to make findings when the trial court failed to make any findings at all.

Disposition. reversed

Quotations verified verbatim against the opinion

“It thus appears that the court below erred to the prejudice of the appellant when it failed to make and sign findings upon the issues of fact presented to it for adjudication.”

“We are not now inclined to extend the scope of the quoted code section to include a case in which the trial court erroneously fails to make any findings.”

Opinion — Waste

WASTE, C. J.

This is an appeal from, an order denying a petition for the removal of executors.

[385]

Appellant, the son of the decedent, filed a petition asking the removal of the executors and the appointment of an administrator with the will annexed. As a basis for such request appellant alleged, among other things, that the executors failed to file a projjer inventory of the decedent’s properties; that certain properties were omitted from such inventory; that taxes on some of the properties had not been paid; that there was a failure to rent certain properties ; that the executors neglected to recover certain jewelry taken by a third person after the decedent’s death; that a certain claim against the estate was paid by the executors without the necessary preliminary investigation to determine its propriety; that there was dissension between the executors; and that the attorney for the executors, to their knowledge, was acting adversely to the best interests of the estate in certain designated particulars.

The executors filed an answer to the petition. Upon the issues joined, the court received evidence and thereafter made the order denying the relief prayed for, from which order this appeal is taken.

At no time did the court below make and sign written findings of fact upon the issues presented. Appellant assigns this as error.

Sections 632 and 633 of the Code of Civil Procedure require that “Upon the trial of a question of fact by the court, its decision must be given in writing”, that in such decision “the facts found and the conclusions of law must be separately stated”, and that judgment “upon the decision must be entered acordingly”. At the time of the hearing upon the petition for removal of executors and at the time of entry of the order here appealed from, sections 1716 and 1717 of the Code of Civil Procedure (now section 1230 of the Probate Code) made the above-quoted sections providing for written findings, applicable to the determination of issues of fact in probate proceedings.

In the

In Re Estate of Pendell

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Opinion — Waste

WASTE, C. J.

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Concurrence — Preston

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