In Re Estate of Sutro

This cause comes before us upon a motion to dismiss certain appeals.

Kate Nussbaum, Rosa V. Morbio, Clara A. English and Edgar E. Sutro, four of the surviving children of the deceased, and John C. Brickell, as trustee of Edgar E. Sutro, petitioned the superior court for the distribution to each of the said four children of a one-sixth interest in certain lands of said deceased claimed by them as heirs, which lands, they alleged, the deceased did not dispose of by his will. The appellants herein appeared in the superior court to oppose the petition for partial distribution and filed answers in opposition thereto. Although they all opposed the distribution, they did not all do so upon the same grounds, nor join in one answer. Their respective interests in the estate were not identical. Emma L. Merritt was a child of the deceased, the executrix of his will, a legatee thereunder, and trustee of a certain trust therein declared in the land in controversy. In her answer she denies that the deceased did not, by his will, dispose of the property in question, or that the petitioners, or either of them, were entitled to a share therein, or that the estate was in a condition for partial distribution. She filed a separate answer as trustee, setting up the trust and denying the intestacy and the right of the petitioners to a share of the lands. The will purports to create another trust covering the property in question, which trust was to begin after the expiration of the trust estate devised to Emma L. Merritt. The appellants, William W. Morrow, George C. Pardee, E.E. Schmitz, Frank J. Murasky, and George A. Newhall, answered the petition, averring that they were constituted by the will trustees of the last mentioned trust, and that, as such, they were, or at the expiration of ten years specified as the duration of the trust to Emma L. Merritt would be, entitled to the property, and authorized to administer and dispose of it in accordance with the terms of the will, and also denying the intestacy and the right of petitioners. *Page 252

Thereafter the petition came on for hearing, all the appellants appeared in opposition thereto, a trial of the issues was had, the evidence of the respective parties heard, findings made by the court, and thereupon a decree was made and entered, distributing to each of the petitioners the one-sixth interest in the property, as prayed for. No separate trial was had with respect to each answer, but the whole case was heard and determined upon the same evidence. The appellants moved for a new trial of the cause, which motion was denied.

On May 31, 1906, the appellants served and filed a notice of appeal, stating therein that they, and each of them, appealed from certain parts of the decree of distribution. On June 4, 1906, they served and filed another notice of appeal, identical with that of May 31, in all particulars except the date. On June 5, 1906, an undertaking on appeal was filed reciting the fact that the appellants, naming them, were about to appeal from the decree, and stating that "in consideration of the premises and of said appeal" the surety promised that the appellants would pay "all damages and costs which may be awarded against them, or any of them, on the appeal, or on the dismissal thereof." It did not, however, specify or in any manner state, whether the "appeal" referred to was that taken by the notice of May 31, 1906, or the one taken by the notice of June 4, either of which appeals was, at the time the undertaking was made and filed, valid and effectual, provided a valid undertaking to sustain it had been then filed. The undertaking, being ambiguous in respect to the appeal referred to, was of no effect whatever and did not support either appeal. (Home and L.A. v. Wilkins, 71 Cal. 626, [12 P. 799]; McCormick v. Belvin, 96 Cal. 182, [31 P. 16]; People v.Center, 61 Cal. 191; Corcoran v. Desmond, 71 Cal. 103, [11 P. 815]; Centerville v. Bachtold, 109 Cal. 113, [41 P. 813];Estate of Heydenfeldt, 119 Cal. 347, [51 P. 543].) No other undertaking was filed within five days succeeding May 31, 1906, and consequently the appeal taken by the notice filed on that day became "ineffectual for any purpose." (Code Civ. Proc., sec. 940.)