Perry v. Superior Court

NOURSE, P. J. On April 5,1937, an action was filed by the public administrator of Marin County as administrator of the estate of 'William Helbing, deceased, to set aside the transfers of several parcels of real property and to quiet title thereto in the estate. Later a .second cause of action was added attacking a trust in other property. Petitioners herein were named as defendants and in due course moved to dismiss. Their objection to the amended complaint, upon the-ground that the issues raised therein were determined in another proceeding and were moot, was denied as was their motion to dismiss. They have sought a writ of prohibition to restrain further proceedings, or, as an alternative,- a writ of mandate to have them dismissed upon the grounds that the entire litigation is brought for no legitimate purpose, but is prosecuted solely for the purpose of enabling the public administrator and his counsel to enrich themselves with fees in the probate court.

The gravamen of the first cause of action is found in paragraph three of the complaint, which reads: “Each and every one of the matters and things hereinafter averred grows and [116]arises out of the same series of transactions, to wit: all the several tracts of land affected hereby were in truth and in fact the property of said decedent in his lifetime and the title to each was placed in the name of one of the defendants herein for the convenience of the decedent, and not as plaintiff is informed and on such information believes, for the purpose of hindering, delaying or defrauding anyone, nor by way of gift, nor otherwise than as a legitimate, though secret, trust; and at various times during the lifetime of decedent he caused the lands so hereinafter described to be conveyed to the several defendants as trustees, himself paying the consideration whereby such lands were secured.” The second cause of action, which was added by amendment, is based on the allegation that the property there described was conveyed to certain defendants in trust for the others, but that the purported trust is void upon its face.

It is alleged in the petition herein, and admitted by respondents, that Jennie Helbing, the widow of deceased, is the only person beneficially interested in the estate, and that she has ratified all the transfers made by decedent and attacked herein, and has consented that the beneficiaries under the trusts attacked take the properties as therein designated. The widow is the only beneficiary under the will, and she and all the other defendants are the only beneficiaries under the trusts. Aside from her community interest in all the property, the widow was the sole legatee under the will. She has approved the trusts and waived all claims in the community and as legatee in favor of the beneficiaries under the trusts. The primary result of the litigation, therefore, if successful, would be to take from the beneficiaries of these trusts the property which is held for them, and give the same to the widow against her will and express consent. To accomplish this purpose the administrator has sued the widow and her children against their will and consent, but, nevertheless, on the pretense that the suit is for their benefit.