Miller v. Miller CA1/5

Filed 12/13/23 Miller v. Miller CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DUNCAN MACKENZIE MILLER, Defendant and Appellant, A166832 v. DEBORAH JEAN MILLER, as (Napa County Trustee, etc., Super. Ct. No. 21PR000269) Plaintiff and Respondent.

Plaintiff and respondent Deborah Jean Miller (Deborah) is trustee of The Elizabeth Anne Miller Residence Trust (Trust).1 Defendant and appellant Duncan Mackenzie Miller (Duncan), Deborah’s brother, appeals from the trial court’s order granting Deborah’s petition for approval of her Trust accounting and for trustee compensation. In the same order, the court denied his objection to the accounting. We affirm. The Trust was established by Elizabeth Anne Miller (Decedent) in December 1996. Deborah, Duncan, and their sister Suzanne are named as equal beneficiaries. Decedent died in March 2019. Thereafter, Deborah has

1 For clarity, we refer to the parties by their first names. No disrespect is intended.

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served as trustee. The Trust was funded with a piece of real property on Big Ranch Road in Napa. Deborah sold the real property in February 2022. In June 2022, Deborah served Duncan with an accounting of the Trust for the period March 2019 through May 2022 (Accounting). The Accounting itemized all of the expenses and listed the date, recipient, purpose, and amount of each expense. In July 2022, Duncan filed a verified “Objection to First Accounting of Debbie Miller, Trustee and Request for Surcharge of Trustee and Other Remedies” (Objection). In September, Deborah filed a verified “Petition for Approval of (1) Trustee’s First Account and Report of the Elizabeth Anne Miller Residence Trust; and (2) Request for Trustee Compensation” (Petition) that responded to the arguments in the Objection and attached the Accounting. The trial court conducted a hearing on the Objection and Petition in October. At the conclusion of the hearing, the court approved the Petition and rejected the Objection. The order is also memorialized in the court’s minutes; the court did not issue a statement of decision. The present appeal followed. On appeal, Duncan contends the trial court erred in approving the Accounting because Deborah presented “no documentary or testimonial evidence in support of the trust expenses during the contested evidentiary hearing.” He relies on the proposition that trustees must “prove every item of their account by ‘satisfactory evidence’; the burden of proof is on them and not on the beneficiary.” (Estate of McCabe (1950) 98 Cal.App.2d 503, 505, citing Purdy v. Johnson (1917) 174 Cal. 521 (Purdy).) Further, he points out that, while Probate Code section 1022 provides that “[a]n affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code,” “when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate