Bank of America v. La Malfa

California Court of Appeal Sep 22, 1971 No. Civ. No. 26597Published

Before: Kane

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Holding. The court held that the filing of a petition by an attorney in fact for nonresident alien heirs constituted a sufficient 'appearance and demand' under Probate Code section 1026 to recover after-discovered estate property. Additionally, the court affirmed the trial court's factual finding that the intervenor was not a co-finder of the property.

Issues

Whether the heirs of a nonresident alien 'appeared and demanded' property in compliance with Probate Code section 1026.
Whether a prior judgment regarding an estate distribution covers after-discovered property.
Whether the evidence supports the trial court's finding that an intervenor was not a co-finder of the discovered property.

Disposition. Reversed in part, affirmed in part, and dismissed in part.

Quotations verified verbatim against the opinion

“The controlling one is simply whether or not the heirs of Cecelia “appeared and demanded” the property in compliance with Probate Code section 1026.”

“The evidence on these issues, while sharply in conflict, is clearly sufficient to sustain the trial court’s determination.”

Opinion

KANE, J. Frank Wert (Wert) died testate on June 15, 1955. Pursuant to the terms of his will, the executor of which was the Bank of America (Bank), the final decree of distribution filed November 12, 1957, provided for distribution of all of the estate and all unknown, undiscovered, or unmentioned property in equal shares to his brother Michael and to the State of California (State) in trust for his sister Cecelia, whose whereabouts were unknown. The distribution of Cecelia’s interest to State was pursuant to Probate Code sections 1027-1028.

Ernest J. Hill (Hill) later learned that Cecelia, a nonresident alien, had died intestate on December 31, 1955. As attorney in fact for her heirs, Hill filed a petition on February 20', 1961 in San Francisco Superior Court to recover the property distributed to State. The petition was granted, without opposition.

On June 15, 1964, $44,750 in currency together with assorted watches and rings were discovered in the presence of Joseph La Malfa (La Malfa) and William H. Stockley (Stockley) on real property formerly owned by Wert.

The legal procedures utilized by the various interested parties may be summarized as follows: La Malfa filed an affidavit in the local justice court describing the property and the location of discovery. Bank, as Wert’s executor, filed a complaint against La Malfa seeking to recover the property as belonging to Wert’s estate. Stockley filed a complaint in intervention against Bank and La Malfa, claiming to be a co-finder of the property. Michael’s guardian then filed a complaint in intervention against Bank, La Malfa and Stockley, seeking recovery of one-half of the property as Wert’s heir. Finally, Hill, as attorney in fact for Cecelia’s heirs, and the heirs themselves, filed a complaint in a separate action against La Malfa and Stockley, seeking recovery of one-half of the property.

[180]Nonjury trial of the consolidated1 actions resulted in a judgment denying recovery of any property by Bank, Stockley, Hill or Cecelia’s heirs, and granting recovery of equal portions of the property by Michael’s guardian and La Malfa, who also recovered $7,458 from Michael’s guardian for services and expenses in preserving his interest. We must consider two appeals—one by Bank and Hill jointly, and one by Stockley.

The Bank-Hill Appeal

Bank of America v. La Malfa

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