Estate of Manwill CA1/1

Filed 6/27/13 Estate of Manwill CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

Estate of ESTELLE ELSA MANWILL,
Deceased.

DAVID G. MANWILL,
Petitioner and Appellant,
v. A135783 & A136311
MARK M. MANWILL, (Contra Costa County
Objector and Respondent. Super. Ct. No. P11-00433)

Petitioner David G. Manwill died after a notice of appeal was filed in this estate
proceeding. Another notice of appeal was filed after his death. The consolidated appeals
have been prosecuted by his son, David J. Manwill, who incorrectly asserts that he has
the authority to represent his deceased father in a judicial proceeding under an alleged
power of attorney. Because David J. does not have standing to pursue these appeals, we
order the appeals dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 23, 2011, decedent Estelle Elsa Manwill executed a holographic will
leaving her estate to her five living children. She died two days later. The estate
primarily consists of real property in Contra Costa County and in South Lake Tahoe, with
a combined value of $1,238,848. The will was witnessed by nine witnesses, including
David G., who was one of decedent’s sons, as well as his son David J. The will makes
outright gifts of real property to decedent’s living children. The will also provides: “I do
not want any of my property sold out side [sic] of my family for a minimum of 20 years.”
The will does not nominate or appoint an executor.
On April 13, 2011, David G. filed a petition for probate of his mother’s will. He
initially sought to be appointed as administrator of the estate, but several of his siblings
objected. Respondent Mark Manwill, David G.’s brother, also filed a petition to
administer the estate. Other family members objected to both brothers’ petitions.
On June 28, 2011, the probate court appointed a private professional fiduciary,
Michael Gardner, as special administrator.
On July 11, 2011, letters of administration were issued. A bond was filed in the
sum of $160,000.
On December 9, 2011, respondent filed a petition seeking, in part, orders directing
the partition and sale of certain real properties under Probate Code section 11950 et seq.
He argued that the language in the will stating decedent’s desire not to sell estate real
property outside the family for 20 years was precatory and nonbinding. A portion of the
petition that sought relief under Probate Code section 850, and which entailed the
potential of a jury trial, was subsequently dismissed by respondent.1
On January 31, 2012, David G.’s attorney filed papers stating that his client had
been hospitalized and was not able to discuss legal matters due to his illness.
On March 2, 2012, Gardner filed a report indicating that administration of the
estate had become difficult due to the competing claims of family members. The report
includes various recommendations regarding management of the real properties.
Also on March 2, 2012, David J. and David G. filed a self-styled “Petition for
Redress,” alleging that the probate proceedings “were wrongly initiated, involuntarily
under the fraudulent guise of the probate court being a ‘county clerk of record substitute’

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Dismissal was entered as requested on April 4, 2012. David J. had been named as a respondent
in that portion of the petition, which sought the return of estate property and rents that he
allegedly collected improperly.

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for obtaining the necessary ‘due process of law for official recognition of Family-
business-holdings-administration.’ ”
On March 6, 2012, David G., through his own attorney, filed his objections and
response to respondent’s December 9, 2011 petition.
On March 9, 2012, the probate court approved several of the proposed
recommendations set forth in Gardner’s March 2, 2012 report.
On March 20, 2012, David G. and David J. filed a document stating their
objections to the proposed orders and hearing.
On April 3, 2012, respondent filed a petition to terminate Gardner’s services as
special administrator, arguing that he was not serving the interests of the beneficiaries
because he had “become dependent on a non-heir and abuser of the estate, David J.
Manwill, in estate administration.”
On April 10, 2012, the probate court filed its order after hearing with respect to the
orders issued on March 9, 2012.
On April 18, 2012, Gardner’s attorney filed a notice of entry of the April 10, 2012
order.
On April 26, 2012, the probate court denied David G. and David J.’s “Petition for
Redress.” According to the minute order, David J. was allowed to remain at the counsel
table and speak only on behalf of himself, not his father. His motions for a jury trial and
a continuance were denied.
On April 30, 2012, David J. filed a “Letter of Information” with the probate court,
asserting that he had the right to represent his father as an attorney at law by virtue of a
notarized power of attorney.
On May 4, 2012, David G. and David J. filed a motion to recuse the probate court
judge, an objection to the proposed orders of April 26, 2012, and a “Letter of Request.”
On May 8, 2012, the probate court found that while David J. might have a power
of attorney as to David G., he did not have the right to appear as his father’s attorney at
law. The court denied the April 30, 2012 letter insofar as it sought to change the record.

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The court also denied the objection filed on May 4, 2012, struck the letter of request and
the motion to recuse, and denied David J.’s request for a continuance.
On June 15, 2012, David G. filed a notice of appeal. The notice references orders
entered on April 18 and April 26, 2012. This is the notice pertaining to appeal No.
A135783.
On June 22, 2012, a hearing was held on various issues pertaining to the
administration of decedent’s estate. The probate court concluded the will is valid and
that the restriction on sale outside the family for 20 years is precatory rather than binding.
The court further found that even if the restriction was binding it would constitute
prohibited restraint on alienation under Civil Code section 880.020.
On June 26, 2012, respondent filed a notice of entry of order after the hearing on
June 22, 2012.
On July 5, 2012, David G. reportedly died of cancer.
On July 18, 2012, the probate court filed its order addressing the appointment of a
general estate administrator. As David G. had died, there was no longer any petition to
compete with respondent’s petition. The court granted respondent’s petition and
appointed respondent as administrator.
On August 16, 2012, David J., apparently acting on his deceased father’s behalf,
filed a notice of appeal of orders entered on “6-22-12, 7-18-12, etc.” This is the notice
pertaining to appeal No. A136311.
On January 23, 2013, we filed our order consolidating the two appeals.
DISCUSSION
As noted above, these appeals are being pursued by David G.’s son, David J., who,
on appeal, again claims to be authorized to act under a “power of attorney” pertaining to
his deceased father. Respondent argues these appeals should be dismissed because David
J. lacks standing to appeal the challenged orders. Standing may be challenged at any
time, even, in the first instance, on appeal. (Troyk v. Farmers Group, Inc. (2009) 171
Cal.App.4th 1305, 1345.) “Standing to appeal is jurisdictional [citation] and the issue of

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whether a party has standing is a question of law [citation].” (People v. Hernandez
(2009) 172 Cal.App.4th 715, 719–720.)
Every action must be prosecuted in the name of the real party in interest, and any
aggrieved party may appeal from an adverse judgment. (Code Civ. Proc., §§ 367, 902.)
“It is generally held, however, that only parties of record may appeal . . . .” (County of
Alameda v. Carleson (1971) 5 Cal.3d 730, 736.) Further, “Not every party has standing
to appeal every appealable order. Although standing to appeal is construed liberally, and
doubts are resolved in its favor, only a person aggrieved by a decision may appeal.” (In
re K.C. (2011) 52 Cal.4th 231, 236.) “An aggrieved person, for this purpose, is one
whose rights or interests are injuriously affected by the decision in an immediate and
substantial way, and not as a nominal or remote consequence of the decision.” (Ibid.)
As David J. concedes his father is deceased, there is no longer a real party in
interest with respect to these appeals. Although he purports to represent his father,
presumably through a connection to his father’s estate, “ ‘An estate or trust is not a legal
entity, and therefore has neither capacity nor standing to sue[.] Title to estate or trust
assets is held by the executor, administrator or trustee, on behalf of the beneficiaries.
Thus, as to claims held by an estate or trust, the executor, administrator or trustee is the
real party in interest. Such fiduciary has the right to sue[.]’ [Citation.]” (O’Flaherty v.
Belgum (2004) 115 Cal.App.4th 1044, 1095.) David J. does not claim to be an executor,
administrator or trustee of his father’s estate.
We also note that in matters governed by the Probate Code, “interested person[s]”
are entitled to appear or object in writing at or before a hearing. (Prob. Code, § 1043,
subd. (a).) The Probate Code defines an “interested person” as an “heir, devisee, child,
spouse, creditor, beneficiary, and any other person having a property right in or claim
against a trust estate or the estate of a decedent which may be affected by the
proceeding.” (Prob. Code, § 48, subd. (a)(1).) David J. is not named in decedent’s will,
therefore he does not qualify as an interested person as this term is defined by subdivision
(a) of Probate Code section 48.

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 Additionally, David J. has not moved to be substituted as a party in his father’s
stead: “A pending action or proceeding does not abate by the death of a party if the cause
of action survives” (Code Civ. Proc., § 377.21), and “Except as otherwise provided by
statute, a cause of action for or against a person is not lost by reason of the person’s
death, but survives subject to the applicable limitations period.” (Code Civ. Proc.,
§ 377.20, subd. (a).) Certain procedural steps are necessary to continue a proceeding
after the death of a party: “On motion after the death of a person who commenced an
action or proceeding, the court shall allow a pending action or proceeding that does not
abate to be continued by the decedent’s personal representative or, if none, by the
decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)2 A substitution of parties
during the pendency of an appeal is made by serving and filing a motion in the reviewing
court in accordance with California Rules of Court, rule 8.36(a).)3 Assuming, without
deciding, that the instant proceedings have not been abated by David G.’s death, the
record shows no such motions have been made. Additionally, there is nothing in the
record on appeal demonstrating that David J. has acquired the status of a personal
representative or a successor in interest as to David G. Accordingly, he has no status to
substitute himself in place of his deceased father.
As noted above, David J. contends he has representative status by virtue of a
power of attorney. Even if he had power of attorney as to his father, such power does not
confer the right to practice law. (See Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 547–
548; Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1831.) Further, assuming
David J. did have the status of a practicing attorney, this would still not give him

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“ ‘Personal representative’ means executor, administrator, administrator with the will annexed,
special administrator, successor personal representative, public administrator acting pursuant to
Section 7660, or a person who performs substantially the same function under the law of another
jurisdiction governing the person’s status.” (Prob. Code, § 58, subd. (a).) Additionally,
according to Code of Civil Procedure section 377.11, “ ‘decedent’s successor in interest’ means
the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of
action or to a particular item of the property that is the subject of a cause of action.”
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Rule 8.36(a) provides: “Substituting parties [¶] Substitution of parties in an appeal or original
proceeding must be made by serving and filing a motion in the reviewing court. The clerk of
that court must notify the superior court of any ruling on the motion.”

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standing. An attorney is not a party aggrieved who is entitled to appeal from the
judgment unless some exception applies. (In re Marriage of Tushinsky (1988) 203
Cal.App.3d 136, 142–143 [attorney had no standing to appeal attorney fee order].) David
J. has not cited to any established exception to support standing to appeal as his father’s
attorney at law.
In light of our determination that David J. does not qualify as a real party in
interest and does not otherwise have standing to pursue these appeals, we need not reach
the merits of his contentions.
DISPOSITION
The consolidated appeals are dismissed. Respondent is entitled to costs on appeal.

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Dondero, J.

We concur:

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Margulies, Acting P. J.

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Banke, J.

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