United California Bank v. Rosin
United California Bank v. Rosin
Opinion of the Court
Two appeals are presented herein: (1) from an order appointing guardians of the estates of two minor children, and (2) from an order granting a family allowance made in the Estate of Victor M. Rosin, deceased.
Appellant, Charlotte V. Rosin, is the mother of Stephen V. Rosin and Benita V- Rosin, born December 1, 1948, and June 6,1950, respectively. A final judgment of divorce was entered which severed the marriage of appellant and the children’s father, Victor M. Rosin, prior to his death, which occurred on
Under the terms of the divorce decree, appellant was awarded $950 per month alimony and $200 per month per child for child support. This order was never modified prior to the father’s death. In 1953, decedent had been appointed guardian of the estates of his minor children and continued to act as such until the time of his death. His last will and testament, executed in 1953 and confirmed as modified by a codicil executed in 1958, named the United California Bank and his brother, Stanley Rosin, hereinafter jointly referred to as respondents, as coexecutors of his will and as eotrustees of the testamentary trusts thereby created. Appellant is not a beneficiary under either the will or the trust.
Decedent’s will also designated respondents as the parties whom he desired to succeed him as guardian of the estates of the children. In accordance with this designation, respondents petitioned for appointment in the guardianship proceedings. Appellant objected thereto and prayed for her own appointment.
In the probate proceeding, appellant filed a petition for a family allowance on behalf of the children and prayed for an order requiring respondents, as coexecutors, to pay directly to her the sum of $3,000 per month for the support and maintenance of the children pending final distribution of the estate. Respondents filed their opposition to said petition alleging that the amounts requested were grossly excessive and that payment of the allowances to appellant would not be in the best interests of the minor children as beneficiaries of the estate. Respondents affirmatively prayed that a reasonable family allowance be allowed and that the allowance be paid directly to the guardians of the children’s estates.
On November 29, 1962, the court filed its findings and its order on the petition for family allowance. The sum of $1,000 per month was fixed as a reasonable amount for the support of the minor children and it was provided that the allowance
On the same date, the court announced its findings and made its order in the guardianship proceedings appointing respondents the successor guardians of the children’s estates. Appellant appeals from this order, contending that as a matter of law she was entitled to the appointment. Custody of the children is not in issue, nor is any question raised regarding her right to act as guardian of their persons. Both parties agree that the decedent had the right to appoint guardians for the property of his children passing under his will (Prob. Code, § 1402), but that in his role of guardian of the estates owned by them during his lifetime he had no statutory right to nominate his successor. (In re Crocker, 174 Cal. 660, 661 [163 P. 1015].)
It is also agreed that even in cases involving guardianships of the person, or of the person and estate, the court appointing such guardian is vested with a substantial amount of discretion and that such determination will not be set aside on appeal in the absence of a showing of a clear abuse of that discretion. (24 Cal.Jur.2d, Guardian and Ward, §§ 17-20, pp. 209-212.)
Appellant, however, contends that under the terms of Probate Code, section 1407,
We need not determine the exact weight, if any, that should be given the priorities set forth in section 1407 of the Probate Code in a case which does not involve the custody of a minor, but his estate only, in order to conclude that the trial court did not err in refusing to appoint appellant guardian of the minors’ estates in the instant case. Initially, it should be noted that section 1407 expressly provides that as between “... persons equally entitled in other respects to the guardianship of a minor, preference is to be given as follows: ...” (Italics added.) Although appellant be
Appellant testified that it was her immediate intention to return to Florida where she had been a resident since 1959. While there is no statutory abridgment of the court’s power to appoint a nonresident as guardian (Guardianship of Levy, 137 Cal.App.2d 237, 248-249 [290 P.2d 320]), such circumstance alone goes far to demonstrate the propriety of the court’s determination. “ ‘While in the absence of statutory provisions to the contrary, a nonresident may be appointed guardian, such appointments are not favored, the rule being that a resident should be appointed rather than a nonresident, unless some very strong reason for appointing the latter is made to appear.’ ” (Italics omitted.) (Guardianship of Boutz, 24 Cal.App.2d 644, 647 [76 P.2d 154].) In addition, while it does not prevent the appointment of a nonresident as guardian, section 1580, subdivision (6), of the Probate Code lists removal from the state as one of the grounds authorizing a court to remove a guardian theretofore appointed.
As previously noted, while the decedent’s wishes regarding his successor guardian are not binding upon the court, they are entitled to consideration. (In re Crocker, supra, 174 Cal. 660.) This is particularly true where the nominated guardian was familiar with the handling of the ward’s estate during the decedent’s lifetime. Thus, the court in Crocker, supra, stated (p. 662) : “ [E]ven if we regard Mr. Phipps as a ‘stranger’ to Mrs. Crocker [the incompetent] in the sense that he did not know her very well personally, the evidence showed without conflict that he was familiar with her business affairs—probably more so than any other person.; ...” (Italics added.) The same statement could be made with reference to respondents herein. The United California Bank had been the depository of these estates and decedent’s brother had been closely related to him in many business and investment ventures.
Finally, appellant’s demands upon the decedent’s estate by way of family allowance, which will be discussed more fully hereafter, demonstrated such a “free and easy” approach to bountiful expenditures of her children’s monies that the trial court could reasonably conclude that it was not
The trial court made findings based upon substantial evidence that the gross income of the decedent’s estate would be approximately $12,000 per year and that $1,000 per month constituted a reasonable sum for the support of the minors pending distribution of the estate. Appellant was not entitled to a family allowance in her own right and was receiving
Although she testified that she would now require $4,665 per month to operate a home for the children, and felt that $3,000 should be allowed her as family allowance from the estate proceedings and $748 from the children’s guardianship estates as their fair share of the costs of maintaining their home, obviously this provides no basis for holding that the trial court was bound to accept such testimony as a matter of law. If the income from the estate proves more substantial than anticipated, or the actual needs of the children are greater than provided for by the present order, such order may be hereafter modified. (Estate of Nelson, 167 Cal. 321, 325 [139 P. 692].)
The requirement that the support allowance be paid to the guardian of the children’s estates rather than to appellant directly was entirely reasonable. In addition to the fact that appellant indicated her plan to leave the jurisdiction of the court, the court doubtless recognized the fact that the children had two potential sources of income, i.e-, their existing estates and their family allowance, and that the determination as to the amounts to be paid from each could be more readily made if they were consolidated and supervised in one proceeding. Further, the propriety of this method of payment was in effect stipulated to by appellant at the beginning of the hearing.
Lastly, appellant makes the parenthetic contention that, since respondents are the executors of decedent’s will and will be the trustees of the trust created thereby, they should not be guardians of the children’s estates and the intermediate recipients of the family allowance because “ [t]heir duties in these capacities require them to preserve
The orders under review are affirmed.
Roth, J., and Kincaid, J., pro tem.,
A petition for a rehearing was denied April 29, 1964.
Probate Code, section 1407, provides: “Of persons equally entitled in other respects to the guardianship of a minor, preference is to be given as follows: (1) To a parent; (2) To one who was indicated by the wishes of a deceased parent; (3) To one who already stands in the position of a trustee of a fund to be applied to the child’s support; (4) To a relative; (5) If the child has already been declared to be a ward or dependent child of the juvenile court, to the probation officer of said court. ’ ’
Appellant introduced the following breakdown of her anticipated expenditures:
“Mr. Viereek [counsel for respondent Bank]: It is the position of the [respondents] that any allowance which the Court sees fit to grant should be paid to the guardian of the estate which is to be appointed. Mr. Ward [counsel for appellant]: Well, I haven’t any argument with that. ’ ’
Retired judge of the superior court sitting pro tempore under assignment by the Chairman of the Judicial Council.
Reference
- Full Case Name
- Estates of STEPHEN V. ROSIN, Minors, etc. UNITED CALIFORNIA BANK, and v. CHARLOTTE V. ROSIN, and Appellant Estate of VICTOR M. ROSIN, CHARLOTTE V. ROSIN, and v. UNITED CALIFORNIA BANK, as etc., and
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- 10 cases
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- Published