Nelson v. Galvin

WARD, J. Neva Nelson, formerly the wife of Albert E. Galvin, as contestant to the probate of his will appeals from the “Decree First and Final Account Distribution of the Estate” of Albert E. Galvin, filed February 18, 1948, and from an amendment thereto filed April 2, 1948.

Albert E. Galvin’s will, dated April 30, 1946, named his brother as executor. He bequeathed his “home & furniture” to a sister, nephew and two nieces; his share of the business [220]of “Galvin Bros. & any of the monies under that name” to his brother and partner, James M. Galvin, and his wife; “To my exwife Neva A Galvin I leave a policy for Government life insurance in her name until maturity which will more that cover the amount of alimony that I agreed to give her. I do not wish her to share in anything else that I now have or may hereafter possess.” On June 3, 1946, a codicil was attached which reads: “I am transferring my life policy to be paid to my brother Jas. M Galvin; in the event of my death any money that I owe my ex wife Neva Galvin will be paid to her by Jas. M. Galvin.”

Written objections to the final account were filed praying that the executor be ordered to settle the affairs of the partnership ; to pay, “as surviving partner, to himself as executor” the assets of the partnership and to render an account “as surviving partner to himself as executor” the assets of the partnership. Attached was a petition for final distribution setting forth that contestant as the “surviving spouse” was the owner of one-half of the community property and that the whole of the estate was community property.

The probate court may exercise jurisdiction to determine the amount of interest of a former wife in the community property of a decedent when the former wife takes as an heir (Estate of Kurt, 83 Cal.App.2d 681 [189 P.2d 528], and cases cited therein) and may determine if a property settlement was made or approved by the court, but the probate court may not retry the issue of community property if it has been finally determined in another action. The provisions of the divorce decree are conclusive so far as the doctrine of res judicata is concerned. (Bennett v. Forrest, 24 Cal.2d 485 [150 P.2d 416].)

An executor who is also a surviving partner may be forced, for good cause, to render an account of the settlement of partnership affairs, but in the present case the presentation of such itemized account would be without purpose as it was demonstrated that appellant was not entitled to a community property interest in the estate.