Behr v. Bank of America

DORAN, J. The appeal herein is from orders of the probate court settling the executor’s third and final account and overruling objections thereto; denying the widow’s claim to community property, and holding that decedent was a resident of Colorado and not California; awarding fees to executor and attorneys for services in defending against the objections, and ordering such fees to be charged against the interest of the widow-objector.

The record discloses that the testator, Gordon E. Behr, died December 21, 1951, in Madrid, Spain, leaving a will which had been made in Tokyo, Japan in which testator is described as “Gordon E. Behr of Tokyo, Japan,” and naming the Bank of America as executor. The will left 40 per cent of the estate to the widow, Fatima Saziye Behr; 40 per cent to Louis and Mabel Behr, testator’s parents; 10 per cent to Isabel Price Behr, a former wife; and 10 per cent to George T. Walker, a friend. The testator left no issue.

At the outset, it may be observed that many of the appellants’ contentions assail the findings of the trial court on the ground that the same are not sustained by the evidence. As pointed out in respondents ’ briefs, it is fundamental [86]that an appellate tribunal will not attempt to weigh the evidence where the record contains substantial evidence in support of the findings. This rule applies whether such evidence is contradicted or uncontradicted.

The above stated rule is particularly applicable to appellants’ contentions contesting findings to the effect that testator was not a resident of California, and that the property in question was not community property. The voluminous record indicates that much evidence was presented to the trial court on these issues.

It is true that the decedent had resided in California with a first wife who secured a California divorce in 1949, at which time the decedent was living in Tokyo. Gordon E. Behr, deceased, married Fatima Saziye Behr, the widow, in 1950, and until decedent’s death on December 21, 1951, Gordon and Fatima lived in various parts of the world where Mr. Behr was required to be in connection with an export-import business. From the mass of evidence presented, the trial court found that the decedent was not a resident of California at the time of death and that the property was not of a community nature. That these findings are sustained by substantial evidence, cannot be doubted.

One of appellants’ most important points is based upon alleged “failure on the part of the Bank (executor) to preserve a wholly-owned estate corporation, G. E. Behr and Co. Inc., which was the principal asset of the estate.” Notwithstanding the bank’s possession of all the outstanding stock and of all relevant financial data, appellant claims that “The said estate corporation and its assets became entirely lost to the estate by reason of the negligence of the Bank. ’ ’ In this connection it is also alleged that, “with full knowledge that one Monro has usurped and converted the assets of the corporation, and without order of Court Bank paid from the estate and to Monro the sum of $12,075.32 as a purported compromise of claims which did not in fact exist.”