Truitt v. Hibbard

Opinion

NEWSOM, Acting P. J. This appeal presents a narrow jurisdictional question of the power of the superior court, sitting in probate, to set aside a deed executed by a conservator before the conservatee’s death. The facts and procedural history relevant to this question can be briefly stated.

Francis Starr was a widower, residing in Berkeley, California, who experienced declining health in the years after the death of his wife and before his own death at age 89 on October 31, 1987. During a period of hospitalization, an adopted son, John Truitt, petitioned the Superior Court for the County of Alameda to be appointed conservator of Starr’s person and estate. Following his appointment on April 24, 1987, Truitt sought to remedy what he perceived to be Starr’s undue generosity toward two friends, Lisbeth Hibbard and Corrine Mason. By a deed dated November 1, 1984, Starr had given Lisbeth Hibbard a joint tenancy interest in his home at 2609 Webster Street in Berkeley. Without the benefit of a court order, Truitt executed a grant deed on June 23, 1987, transferring Starr’s interest in the property to himself as conservator for the purpose of severing the joint tenancy. The deed was recorded on June 26, 1987. Later in the summer, another adopted son, Harrison Starr, was also appointed conservator of Francis Starr. About three months after their conservatee’s death, the conservators filed a petition for a first and final accounting which disclosed the grant deed purporting to sever the joint tenancy.

Upon learning of the grant deed, Lisbeth Hibbard and Corinne Mason (hereafter respondents) petitioned the court to set aside the deed as part of the final accounting of the conservatorship. The court, acting through a court commissioner, Barbara Miller, set a hearing for arguments on this specific issue in April 1988. On May 5, 1988, Commissioner Miller issued an order, noted in the clerk’s minutes, setting aside the grant deed and directing the conservators “to take all actions necessary to formally cancel said conveyance.” The minute order instructed counsel for the conservators “to prepare an order for execution by the court in compliance with the terms of this ruling.”

[1393]Unfortunately, the formal order complying with the minute order was signed on May 16, 1988, by a judge of the superior court who had no connection with the proceeding. On June 17, 1988, the conservators filed a notice of appeal from a pertinent paragraph in the minute order. Subsequently, on July 7, 1988, Commissioner Miller, sitting as judge pro tem of the superior court, entered a formal order nunc pro tunc as of May 16, 1988, setting aside the grant deed. The order stated in part: “This Amended Order is subject to the appeal now on file in this matter and appellants [the conservators] shall not be required to file an appeal to this Amended Order.”