Auslen v. Auslen

California Court of Appeal May 15, 1963 No. Civ. No. 10592Published

Before: Schottky

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Holding. The court held that the probate court lacked jurisdiction over the Celia Appelbaum Trust, necessitating the reversal of orders concerning the trust's administration and the subsequent contempt finding for failing to comply with those void orders. Paragraph 4 of the April 3, 1962 order was affirmed as the accounting was valid despite references to the trust.

Issues

Whether the probate court had jurisdiction to determine heirship and order an accounting regarding the Celia Appelbaum Trust.
Whether the contempt order against Harry Auslen for failing to comply with the trust accounting order should be sustained.
Whether paragraph 4 of the April 3, 1962 order regarding the administrator's account should be reversed or revised.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“It is clear that paragraphs 6 and 10 of the order must be reversed.”

“Since the court had no jurisdiction of the Celia Appelbaum Trust any order pertaining to that trust is void and must be reversed.”

“The order of April 3, 1962, is reversed as to paragraphs 6 and 10 and in all other respects it is affirmed.”

SCHOTTKY, J. These are appeals from separate orders of the superior court sitting in probate in the estate of Harry Auslender, deceased. The cases were consolidated for decision in this court.

The appeal in number 10592 is concerned with the following paragraphs of an order entered April 3,1962:

“4. The Report and Second Account of Morris Auslen as Administrator, is hereby settled, allowed and approved in all respects as filed and presented, save and except for the sum of Five Dollars ($5.00), which is hereby surcharged to said Morris Auslen, as Administrator; this court finding that in [236]all other respects the said report and account is true, accurate and correct, and supported by proper vouchers on file. The objections of Harry Auslen to said Report and Second Account are hereby overruled. ’ ’

“6. The Petition of Morris Auslen, both as Administrator and as Heir at Law of Decedent, To Determine Heirship, is hereby granted in all respects as filed, and this court now finds that the allegations of said petition, and each of them, are true, that the Celia Appelbaum Trust was terminated on January 19, 1959, in accordance with its provisions and ever since said date said trust has been a naked, dry and passive trust, and should be disregarded in the determination of those persons who are entitled to any further distribution of this estate; that the persons who are presently entitled to distribution of any further assets of the estate without intervention of said trust, and their respective interests in said estate are as follows:

William Auslen, Jr., a 10% interest therein

Kate Auslen Abrahams, a 20% interest therein

Pauline Auslen Lurie, a 20% interest therein

Morris Auslen, a 20% interest therein

Harry Auslen, a 10% interest therein

the estate of William Auslen (Senior), deceased

Donald Harry Auslen, a 5 % interest therein

Richard M. Auslen, a 5% interest therein

“10. Harry Auslen, as Trustee of the Celia Appelbaum trust, is hereby directed and ordered to file a further accounting and to present the same for settlement herein as Trustee of said trust within thirty (30) days from date of this Order.”

Auslen v. Auslen

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