Hoover v. Bank of America National Trust & Savings Ass'n

California Court of Appeal Jul 18, 1934 No. Civ. No. 9418Published

Before: Nourse, Schmidt, Spence

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Holding. The court held that the trial court erred by ordering the immediate payment of a contested claim against the estate, as this action deprived the contestant of their statutory right to a jury trial on the validity of the claim.

Issues

Whether a contestant is entitled to a jury trial when challenging the validity of a claim against an estate reported in an executor's account.
Whether the trial court erred in ordering the immediate payment of a contested claim before the contestant could exercise their right to a jury trial.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“Whenever an allowed claim is contested by any person entitled to contest it, either the contestant or the claimant is entitled to a trial by jury of the issues of fact presented by the contest”

“This was error done in violation of section 713 of the Probate Code and by so doing deprived contestant of the right to a trial by jury to test the validity of the claim as provided by section 928 of the Probate Code.”

SCHMIDT, J., pro tem. In the above estate the executor Bank of America National Trust and Savings Association filed in the lower court its first account as such executor. In said first account, after setting forth its receipts and disbursements, there was set forth, among other matters, “that there has also been presented against said estate the claim of E. M. Rea for the sum of $6,429.60, which claim has not been approved.

“Your petitioner requests that the court . . . determine the propriety of said claim of said E. M. Rea and to make an order relative to the allowance and payment of same.” To this first account Gertrude Hoover, a daughter of decedent and a devisee and legatee under his will, filed. her written exceptions and contest, setting forth as to the aforementioned item of Rea “that said proposed expense is excessive, unreasonable and not authorized by law”. The said claim of Rea was chiefly for attorney’s fees and partially for moneys expended for the decedent. The day following the filing of the written exceptions there was filed a demand for trial by jury, the essential part of which is “ . . . and demands that the trial of the issues of fact presented by the contest be tried by a jury”. In addition to the particular exception involved herein, twenty-six other exceptions to the first account were set forth in the aforementioned written exceptions, but the appeal herein involves only the aforementioned claim of Rea.

On the hearing, in so far as it related to the Rea item, the court took testimony and after hearing same denied the exceptions and allowed the claim. After the court had allowed certain items presented; including the aforementioned claim of Rea, counsel for contestant, addressing the court, stated: “Now we renew our request for a jury trial as to all items which have been allowed this afternoon,” and after some discussion the following took place:

“Mr. Richardson: Now we offer, if your Honor please, to proceed with the trial as to all the claims the court has [764]allowed this afternoon and all claims heretofore allowed, we demand a jury. '

“The Court: Well to the extent you are entitled to a jury trial of course I have no discretion.

“Mr. Richardson: Will it be continued to the next calendar ?

“The Court: These are allowed. I have nothing to do with the demands for jury trial. You have to file your demand under the Code of Civil Procedure.

Hoover v. Bank of America National Trust & Savings Ass'n

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