Petitioners Reply Brief — Joslyn v. Superior Court of California

_ SUPREME COURT, U, &

LIBRARY | m FILED

|. ~ FEB 29 196g

U

163 | JOHN F. DAVIS, CLERK

Supreme Court of the United States

| * No. 991

In the Matter of the Estate of ee he

MARCELLUS LINDSEY JOSLYN, also known as MARCELLUS

‘I.. JOSLYN, and as M. L. JOSLYN,

ee . Deceased.

MARCELLUS N. JOSLYN, Ae cate

s Petitioner,

; US.

SUPREME COURT OF CALIFORNIA, ‘sae

. Respondent.

SUPREME COURT OF CALIFORNIA, MERRITT L. JOSLYN,

MARY C. PARKER CURRIVAN, RONALD MERRITT JOS-

LYN, JOY LOUISE MacNULTY, JOYLON DAVID JOSLYN,

THEODORE NEWELL JOSLYN, CELIA ALICE P

| M. WESLEY PARKER, III, MARCELLUS JOSLYN P.

' ALICE. JOSLYN, WILLIAM DWIGHT JOSLYN, PENNY

| IRENE JOSLYN, MARCELLUS LeFEVRE JOSLYN, MARINA

ELAINE JOSLYN, LOIS E. MENDENHALL, MRS. MARY R. __

SHOFF CAREY, ROBERT F. DOLAN, BALDO M. KRIS.

TOVICH, Public Administrator, ILSE AUDREY POLERI, MAR- °

- CIA HARRIET JOSLYN SILL, MARY ALICE GURLEY, and

ROBERT D. MacDONALD, individually and as Executor of the

Last Will of MARCELLUS L. JOSLYN, S

° Real Parties in Interest.

BALDO M. KRISTOVICH, Public Administrator, ILSE AUDREY

POLERI, MARCIA HARRIET JOSLYN SILL, MARY ALICE

. oe Respondents.

REPLY TO RESPONDENTS’ BRIEF

| IN OPPOSITION —

MORRIS LAVINE, ESQ., -

215 West Seventh Street,

Suite 620,

TABLE OF CASES AND AUTHORITIES CITED -

Boyd v.'U.S., 116 U. S.. 616 E

2

Kstate of Fraysher, 47 Cal. 2d 131, 135 5

Estate of Rhode, 158 Cal. App. (2) 19 4

2

2

4

Hovey v. Elliott, 167 U.S. 409

Lund v. Superior Court, 61 Cal. 698

Magee v. State Bar, 58 Cal. (2) 423 ...

Authorities

Califotnia Probate Code, Secs. 329 and 1170 . RE

Code of Civil Procedure, Section 20364 ....... 2, 3

Constitution of the United States, Fourteenth

- Amendment , — +

Supreme Court of the United States

October Term, 1967 .

No. 991

In the Matter of the Estate of

MARCELLUS LINDSEY JOSLYN, also known as MARCELLUS

L. JOSLYN, and as M. L. JOSLYN,

Deceased.

MARCELLUS N., JOSLYN,

Petitioner,

vs.

SUPREME COURT OF CALIFORNIA, ;

Respondent.

SUPREME COURT OF CALIFORNIA, MERRITT L. JOSLYN,

MARY C. PARKER CURRIVAN, RONALD MERRITT JOS-

LYN, JOY LOUISE MacNULTY, JOYLON DAVID JOSLYN,

THEODORE NEWELL JOSLYN, CELIA ALICE PARKER, .

M. WESLEY PARKER, III, MARCELLUS JOSLYN PARKER, ;

‘ ALICE JOSLYN, WILLIAM DWIGHT JOSLYN, PENNY

IRENE JOSLYN, MARCELLUS LeFEVRE JOSLYN, MARINA

ELAINE JOSLYN, LOIS E. MENDENHALL, MRS. MARY R.

SHOFF CAREY, ROBERT F. DOLAN, BALDO M. KRIS-

TOVICH, Public Administrator, ILSE AUDREY POLERI, MAR-

CIA HARRIET JOSLYN SILL, MARY ALICE GURLEY, and

ROBERT TD. MacDONALD, individually and as Executor of the

Last Will of MARCELLUS L. JOSLYN, Deceased,

Real Parties in Interest.

BALDO M. KRISTOVICH, Public Administrator, ILSE AUDREY

‘POLERI, MARCIA HARRIET JOSLYN SILL, MARY ALICE

. GURLEY, F

4 : | Respondents.

REPLY TO RESPONDENTS’ BRIEF

IN OPPOSITION

To the Houévable Earl Warren, Chief Justice, and to

the Honorable Associate Justices of the Supreme

: Court of the United: States: : |

FS ee

be heh AIE TW Py wid ads Rahs rg OMe Wn mee wr

—2—

- Respondent misunderstands and misconceives our

_ petition for a writ of prohibition, mandate or any other

appropriate writ in the Supreme Court of California

in this matter. It resulted from a decision by Mr.

Justice Peters in Lund v. Superior Court, 61 Cal. 698,

which provides for an extraordinary wiit in the casé

of trial courts’ acts in éxcess of jurisdiction in dis-

covery proceedings, such as attempted here, resulting

in dismissal arbitrarily of the $115,000,000 post pro-

bate amended will contest of petitioner. - |

We petitioned the court for a writ of mandate- and

prohibition and any other appropriate writ (certior-

ari) because the court below,’in dismissing the appeal

from the statutory right of a will contest, acted with-

out legal authority and therefore in excess of its jur-

isdiction. The court, in dismissing the will contest pur-

suant to Section 2034 of the Code of Civil’ Procedure

of the State of California, challenged as ‘unconstitt-

tional under the Fourteenth Amendment to the Con-

stitution of the United States inherently and as con- |

strued and applied in this case, allowed other persons

pro confesso to take the property of this petitioner ar-

bitrarily and capriciously. This, we contend, is in viola-

tion of the due process clause of the Fourteenth Amend-

ment to the Constitution of the ‘United States.

As early as Boyd v. U.S., 116 U. S. 616, and again

repeated in Hovey v. Elliott, 167 U.S. 409, this Court

has held that proeedure such as indulged. in by the

California Superior Court and implicitly affirmed by

the Supreme Court of California, violated due process

of law guaranteed by the Fourteenth Amendment to

the Constitution of the United States.

Our petition for the extraordinary writ in the Su-

- preme Court of California was dettied on October 11,

1967. Within the time allowed by law in this Court and

within 90 days thereafter, we petitioned this Court for

a writ of certiorari. ;

' The attempt by respondent to move the proceedings —

‘back to earlier ones becomes irrelevant. Our petition

for writ of certiorari is directed to the denial by the

California Supreme Court of a writ of prohibition or

mandate or certiorari.

.Counsel for respondents has duplicated his incorrect _

statement of facts in this petition which is contained in

his response to No. 990, directed to the Court of Ap-

peal, Second Appellate District, State of California.

The two proceedings involve the same subject mat-

ter, namely, the petition by our client to be accorded |

a full and fair trial on the merits of his post probate

amended will. contest before a jury (Prob: Code 371,

382) of the $15,000,000 estate of his father and the ap-

pointment of the attorney through his father’s will as

testamentary trustee of his mother’s will. Our pe-

tition is based on the fact that Section 2034 of the

Code of Civil Procedure, inherently and as construed

and applied in this case, is in violation of the due

process clause of the Fourteenth Amendment. As we

toa iaintnca cise Ast ed ai

;

é

+

?

.

—

_. pointed out in No. 990, the petitioner is not receiving

income under his father’s will. All that was left him

is some bric-a-brac and old furniture of little value.

_ Whatever has flown from his mother’s estate, a woman -

who died more than twelve years before’his father, is

not in issue here at all nor relevant to the determin-

ation if his rights under his father’s will except as. it

relates to the appointment of the same attorney who

drew the will to be named as successor trustee under

the power of appointment contained in his father’s will -

which is now under attack, in which ‘we hope and ex-

pect to have this Court order a trial and hearing on

the merits. . |

The issue is quite simple. The courts below denied

_ petitioner a trial on the merits of a post probate

amended will contest which the statutes of California | |

authorize and allow and which he duly and regularly

- pleaded and filed after being advised by a highly com-

petent probate attorney; (Harry C. Mabry, Esq.). Re-

spondent does not deny that the attorney who acted

as attorney, business associate and tax advisor of ‘de-

cedent wrote the will under attack for the 89 vear old

. ill party, with substantial financial benefits to himself

which, under California law and on the mere presen-

tation of these facts makes the will prima facie the

result of undue influetice’ and without consideration.

Magee v. State Bar, 58 Cal. (2) 423:

Estate of Rohde, 158 Cal. App. (2) 19.

.

In addition to that, it appears that the: eat’ on

which the will was presumably executed and witnessed

is faulty upon a mere observation of the document it- :

self. Thus, the contestant would have ample grounds ~

to set aside the will without any further testimony.

It is significant also that the California law requires

trial by jury on a will contest. (Probate Code Sec.

371, 382) None was had here. The proceeding now

used excluded petitioner from the amended contest of

the will.

The alleged findings of fact and conclusions of law

drawn with reference to the amended wiil contest were

not based upon any testimony or evidence in open trial

before the court. Nothing was subject to cross-exam-

ination before a judge or jury and no witnesses testi-

- fied under oath. There _was a summary dismissal of

__ the whole proceeding. The findings of fact, conclusions

of law and order dismissing the amended will contest

after probate were therefore a sham and arbitrary

and capricious. Not a single word of sworn testimony

in open court and from the witness stand formed the

basis of this arbitrary and capricous proceeding.

The only permission to use declarations and affi-

davits in the Probate Court of California relate to

uncontested matters and proof of death.

California Probate Code, Secs. 329 and 1170;

Estate of Fraysher, 47 Cal. 2d 131, 135.

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The court, therefore, pr ocidled to judgment with-

out hearing. any competent evidence’ and this Court

should grant certiorari. We adopt the cases:and grgu-

: ment on’ these points that are set forth in ‘our reply

in case No. 990. | | °

We therefore pray that this Court iia the. writ

of certiorari and reverse the judgment and orders be- —

low.

Rinpesttaiin bs

MORRIS LAVINE, ESQ.,

215 West Seventh St., Suite 620

Los Angeles, California 90014

MAdison ‘7-3241 Aes

Attorney for Petitioner.