Dulfon v. Bregman

California Court of Appeal Jul 14, 1966 No. Civ. No. 30045Published

Before: Shinn

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Holding. The court held that a testator's choice of executor must be honored unless there is a compelling legal reason for disqualification, and that the trial court erred in denying the petition without sufficient evidence of incompetence or dishonesty.

Issues

Whether a surviving partner is disqualified from serving as an executor under Probate Code section 421.
Whether an executor's alleged indebtedness to the estate or adverse interests constitute sufficient grounds for disqualification.
Whether a prior renunciation of the right to serve as executor is binding if the underlying agreement was never approved by the court.

Disposition. reversed

Quotations verified verbatim against the opinion

“The fact, alone, that one who is named as executor is a surviving partner does not render him disqualified to act as such.”

“One who is named as executor cannot be denied the right to act as such without good reason.”

“Beatrice had confidence that Ernie would be a faithful and competent executor. She was in a better position than anyone else to judge of that fact.”

SHINN, P. J. The appeal is from an order denying the petition of Ernie I. Dulfon for issuance to him of letters testamentary pursuant to his appointment as executor by the will of his deceased wife. The conclusion we reach is that the order should be reversed.

Appellant had been married to Beatrice, the deceased, five and a half years; each had issue of a previous marriage. Beatrice operated what was described as a “bulk” mail order business, owned a considerable amount of property and had the money.

Ernie and Beatrice executed mutual wills. It is sufficient for present purposes to note that the will of Ernie left his estate (except for a 50 percent interest in an invention) to Beatrice [471]and a 50 percent interest in the invention to his two daughters, issue of his previous marriage. The will of Beatrice left half of her estate to Ernie and half in trust to Mary Louise Bregman, the daughter of Beatrice. Ernie was named as executor.

Ernie offered the will for probate and petitioned for letters testamentary; Mary filed a contest, which was withdrawn; the will was admitted to probate, Ernie’s petition for letters was denied and United California Bank was appointed as administrator with will annexed.

Although Mary withdrew her contest to probate of the will she opposed court appointment of Ernie as executor; that issue went to trial and the court made its findings among which were those set out below.1

The only relevant conclusion of law was that the petition of Ernie for letters testamentary should be denied.

We cannot determine from the findings the reasons for the denial of the petition; whether it was because Ernie was the surviving partner of a business, or owed money to the estate, or was living in one of the apartments owned by the estate at an uncertain rental, or had beaten Mary at some time in the past and had threatened her, or had entered the safety deposit box without informing the bank of the death of Beatrice.

[472]We consider first the finding that Ernie was the surviving partner of Beatrice.

Dulfon v. Bregman

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