## Facts

- Kathryn Marlow Hughes died in 1975 owning a San Diego residence as separate property.
- Her 1965 will left the residue to her two children and omitted her spouse, George E. Hughes.
- Under the omitted spouse statute, George received a one-third interest in the residence; the children held the remaining two-thirds.
- George remained in the residence from 1975 until his death in 1986; after George remarried, he and his new wife, Sylvia, lived there.
- George and Sylvia made payments on the note secured by the property but paid no rent to the other cotenants for many years.
- Sylvia stayed in the residence until 1988; the probate court later ordered her to pay rent beginning in 1987.
- During roughly ten years as personal representative, Danice Diemoz did not remove the occupants or obtain reasonable rent for the estate’s share.
- After Diemoz, Ben G. Patton became administrator with the will annexed and sought (1) a surcharge against Diemoz for failing to collect rent and (2) rent from Sylvia and/or George’s estate.

## Issues

1. Whether a cotenant’s long-term, essentially exclusive possession without paying rent can constitute an “ouster” making the cotenant in possession liable for rent to cotenants out of possession.
2. Whether the former personal representative may be surcharged for failing to seek or obtain reasonable rental value from estate property occupied by a cotenant, where rent may have been collectible under a correct ouster standard.

## Decision

- The Court of Appeal reversed the probate court’s determination that George’s conduct “never constituted an ouster” and that no rent was due before the later rental order.
- The court held that the probate court applied an overly rigid view of ouster; the rent issue required reconsideration under a functional standard.
- Because the no-ouster/no-rent ruling affected the probate court’s refusal to surcharge Diemoz, the surcharge issue also required reconsideration.
- The matter was remanded for further proceedings to determine whether and when an ouster occurred and to calculate any rent/damages and related fiduciary liability.

## Legal Principles

- A cotenant in possession generally is not liable to other cotenants for rent absent agreement, statute, or ouster.
- Ouster is not limited to forcible or physical exclusion; conduct that effectively deprives other cotenants of the practical benefits of co-possession over time may qualify.
- When ouster is shown, rent or damages may be awarded to compensate cotenants out of possession for the loss of use.
- A personal representative must act prudently to protect and realize value from estate assets, including pursuing rental value where estate property is occupied in a manner that may support rent liability.
- When a probate court’s accounting and surcharge determinations rest on an incorrect legal premise about underlying property rights, those determinations must be revisited on remand under the correct standard.

## Conclusion

The court rejected a narrow, force-based conception of ouster in cotenancy disputes involving long-term exclusive occupancy, reversed the no-rent ruling, and remanded for recalculation of any rent/damages and for reconsideration of whether the former personal representative should be surcharged for failing to secure rental value for the estate.


Estate of Hughes v. Patton, 5 Cal. App. 4th 1607, 7 Cal. Rptr. 2d 742 (Ct. App. 1992)