Bruce v. Owen

BARNARD, P. J. This is an appeal from an order settling an account of the executors of this estate.

[323]H. S. Bruce died on November 5, 1930. His son Lewis Bruce and one Chester Dowell were appointed executors of his will on December 8, 1930. The inventory and appraisement, filed on March 7, 1931, in setting forth the property belonging to the estate which had come into the hands of the executors, listed 125 shares of stock in a certain bank appraised at $14,000, a note executed by Lewis Bruce appraised at $2,640, and a note executed by Orpha E. Owen appraised at $119.05, a total of $16,759.05.

On December 17,1935, the executors filed their first account, in which they included the proceeds of twenty-five shares of this bank stock which had been sold, together with the dividends received from these particular shares, but omitted all reference to the other one hundred shares of bank stock or the dividends thereon. On December 20, 1935, two daughters •of the deceased filed a contest to this account, demanding, among other things, that the executors be charged with the other hundred shares of bank stock and the dividends thereon. Thereupon the executors filed a supplemental account, sworn to by Lewis Bruce, alleging that this one hundred shares of bank stock was not and never had been the property of said estate, but was and at all times had been the property of Lewis Bruce, and that the same had been included as an asset of the estate “by réason of inadvertence and mistake”. After a hearing upon the account and the exceptions thereto the court made its order settling the account, finding, among other things, that Lewis Bruce held title to one hundred shares of this bank stock in trust for the said H. S. Bruce, and charging the executors with said stock, including all dividends thereon. This appeal was taken by Lewis Bruce from that portion of this order which charged the executors with this one hundred shares of bank stock and dividends therefrom.

The appellant contends that the trial court, sitting as a probate court, had no jurisdiction to pass upon the question of ownership or title to this stock. He relies upon the general rule that a probate court, in settling an account, has no jurisdiction to determine the rights of parties claiming adversely to the estate. (Texas Co. v. Bank of America etc., Ass'n, 5 Cal. (2d) 35 [53 Pac. (2d) 127].) This case falls within a well-recognized exception to the rule referred to. (Estate of Roach, 208 Cal. 394 [281 Pac. 607], and cases there cited.)