This is an appeal from an order refusing to transfer all proceedings in the aforesaid estate to another department of the superior court.
The motion to transfer the proceedings was based on the alleged prejudice and bias of Honorable Thomas F. Graham, before whom said proceedings were then pending. The essential facts relied on in support of the motion are as follows:
The administration of the estate has been proceeding in the superior court of San Francisco from the year 1900 down to the present time. The will of the decedent, which was duly probated, gave the residue of the estate to a charitable corporation known as the Hebrew Home for Aged Disabled of San Francisco, California. In 1901 that corporation instituted a proceeding, under section 1664 of the Code of Civil Procedure, to determine to whom distribution should be made and the interest and estate of each person declared to be entitled. Many different sets or groups of persons appeared *Page 447 therein claiming heirship, among them appellants herein. This proceeding is still pending, and had so far advanced that judgment that the testator left no heirs had been entered in the superior court and a motion for a new trial of that proceeding had been made by the appellants here. Judge Graham was about to proceed to hear the motion when this application by the appellants to transfer all the proceedings to another department was interposed.
This and all other proceedings in the administration were transferred in 1907, to Department 10 of the superior court, over which Judge Graham presides, and he has, ever since that time, presided at all the proceedings taken. In December, 1909, the said Hebrew Home filed a petition, under sections 1658 to 1662 of the Code of Civil Procedure for a partial distribution of its residue, alleging that the total value of such residue was then about seven hundred and fifty thousand dollars, and asking distribution of two hundred thousand dollars thereof. This, it will be observed, was less than one-third of the estate, and the donee would be entitled to it as a donee for a charitable purpose, even if some of the appellants are eventually adjudged to be heirs. The appellants appeared in opposition but were not successful, and a decree of partial distribution to said petitioner of property appraised at one hundred and fourteen thousand five hundred dollars was made on September 6, 1910, in pursuance of said petition and of a stipulation signed by all the parties present, including the appellants, in which all of them waived all right to move for a new trial or to appeal therefrom.
The facts relied on as proof of bias and prejudice consist for the most part of what it is alleged he said and did while presiding as judge at the proceeding for partial distribution. They are: 1. That he instructed the attorney for the executors that they should not appeal from the order of partial distribution, saying that he wanted to see the aged Hebrews get the benefit of the money right away. 2. That he made said distribution, erroneously as appellants claim, to the corporation aforesaid instead of to the directors thereof personally in trust for the corporation. 3. That he suggested to the parties appearing that they all agree to the order as made. 4. That during the hearings he several times interrupted counsel for appellants in the conduct of the case. 5. That on the settlement of the findings in the proceeding *Page 448 to determine heirship he said to the attorneys for appellants that he would see that they got a copy of the findings five days before they were signed, but that in fact he signed said findings two days afterward and without notice to appellants or their attorneys. 6. That he signed the findings prepared by the plaintiff in that proceeding and refused to allow or sign any finding proposed by the executors, and that he refused to hear further argument in regard to postdating the file-marks on the findings.
The affidavits in support of the motion are met by an affidavit of Judge Graham explicitly denying any bias or prejudice, and declaring that in all his statements, rulings, and actions in these matters he was actuated solely by a desire to do justice.
The charge of bias and prejudice scarcely deserves serious consideration even if there were no denial. The appellants were not injured by the partial distribution. It was less than one-third of the estate, and the charitable bequest would be good to that extent against them as heirs in any event. The only point urged was that it should have been made to the directors instead of the corporation. As due notice had been given, the directors would be bound by the decree, and the estate was fully protected against any claim they might afterward make to the same property. The instruction to the executors not to appeal was proper. There is nothing to indicate that the judge did not honestly believe that the corporation was the donee of the residue, not the directors. We must, therefore, presume that he did. The making of the partial distribution was so obviously right that the judge was fully justified in suggesting that all should agree to it. No improper motive is charged with respect to the failure of the judge to keep his promise to give the appellants' attorneys the findings five days before they were signed. Even if bias were not denied, the only fair inference would be that such failure was a mere inadvertence. The court is itself responsible for the findings. (Code Civ. Proc., sec. 632.) At the time these findings were filed the statute did not require the judge to allow the attorneys for the parties to examine the findings before they were filed. There was nothing irregular in the proceeding, nor is it alleged that the mere form of the findings was in any wise prejudicial to the appellants. *Page 449
For these reasons I am of the opinion that both the motion and the appeal are without merit, and I concur in the judgment of affirmance.
Lawlor, J., concurred.