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District Court of Appeal, First District, Division 1, California.


Civ. 14716.

Decided: June 01, 1951

Joseph A. Brown, San Francisco, for appellant. Burnett & Burnett, San Jose, for respondents.

Adele Masson appeals from the decree of final distribution in the estate of Marie Lefranc, which decree provides that, because Adele had instituted a contest of the will of the deceased, she had forfeited all her rights as a legatee under the will, and which further provides that the entire residue of the estate should be distributed to the respondent, Nelty Lefranc Horney.

Marie Lefranc died testate on April 7, 1942, leaving respondent Nelty Lefranc Horney and appellant Adele Masson, nieces, as her sole heirs at law, and leaving an estate now valued at about $100,000.

By her will the testatrix made certain minor specific bequests and then left the entire residue of the estate to trustees with instructions to pay the entire net income to Adele Masson, this trust to terminate upon the death of Adele, at which time the corpus was to vest in the children of Adele, and, if there were no children, then in Nelty, and if Nelty were not then alive, then in the children of Nelty. The will contained the following clause: ‘I purposely make no provision for any other person whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this Will or not mentioned herein, shall contest this Will or object to any of the provisions hereof, I give to such person so contesting or objecting the sum of $1.00 and no more in lieu of the provision which I have made, or which I might have made herein for such person so contesting or objecting.’

In October of 1942, Adele petitioned to revoke the probate of the will on the ground that, when it was executed, the testatrix was unsound of mind. The will was upheld by the trial court, and this judgment was affirmed on appeal. Estate of Lefranc, 95 Cal.App.2d 885, 214 P.2d 420.

On May 1, 1950 the executors filed their first and final account, and petition for final distribution. The prayer was that the residue of the estate be distributed to Nelty Lefranc Horney because Adele had forfeited her life estate by reason of the contest. Adele filed her objections to this petition and Nelty also filed certain objections to the account, and joined in the request of the executors that the residue of the estate be distributed to her, and further alleging that Adele, who is childless, is unable to bear a child by reason of a surgical operation.

In July of 1950 the probate court entered its decree distributing $1 to Adele Masson and the residue of the estate to Nelty Lefranc Horney. Adele appeals.

The fifth clause of the will is the one creating the trust for Adele. It reads as follows:

‘All the rest, residue and remainder of my Estate, whether the same be real, personal or mixed, I give and devise to Wells Fargo Bank & Union Trust Co. to be held in trust by them, nevertheless, subject to the following, uses, terms, conditions and limitations:

‘(a) My said trustee shall pay to my niece Adele Masson, during her lifetime, all of the net income of said Trust Estate.

‘(b) This Trust shall cease and terminate upon the death of my said niece, Adele Masson, whereupon the corpus of said trust, as well as any undistributed income thereon shall become the property of and vest in the issue of my said niece, Adele Masson, born in lawful wedlock. If my said niece, Adele Masson, shall leave no issue born in lawful wedlock upon her death, then the corpus of said trust and the undistributed income thereon shall become the property of and vest in my niece Nelty Lefranc Horney, if she be alive at said time. If Nelty Lefranc Horney should predecease Adele Masson, then upon the death of said Adele Masson, without issue born in lawful wedlock, the corpus of said trust and the undistributed income thereon shall vest in the issue of said Nelty Lefranc Horney.’

Then, after giving the trustees broad powers over the trust property, the clause continues: ‘(d) It is expressly understood that the net income arising from this trust estate, and the principal thereof, are intended for the sole and individual use and enjoyment of the said beneficiary, Adele Masson, subject to the terms and conditions hereof, and said beneficiary shall not in any event sell, assign, transfer, convey, pledge, hypothecate or otherwise encumber her interest under this trust nor shall the principal or any of the income arising therefrom be liable for any debt of said beneficiary, nor subject to a judgment or judgments rendered against said beneficiary nor to the process of any Court in aid or execution of any judgment or judgments so rendered.’

At the hearing of the petition for distribution there was read into the record the testimony of the attorney who drafted the will and one of its subscribing witnesses given on the trial of the will contest (he being too ill to appear at the hearing) to the effect that the purpose of the trust was to protect Adele Masson because she was not considered by the testatrix to be competent to handle her own business affairs. In addition, the attorney for Nelty Lefranc Horney offered to prove that Adele Masson had had a hysterectomy performed and, as a result, was incapable of bearing children. This offer of proof was never directly ruled upon, and no evidence on this issue was introduced.

The two key findings in the decree of distribution read as follows:

‘That at the time of the commencement of said will contest proceeding by said Adele Masson, to wit, on the 7th day of October 1942, said Adele Masson was unmarried and has never been married, was approximately 48 years of age, and had not then or has she since given birth to any child or children, nor does she have nor has she ever had any child or children. * * *

‘That the only reason for the creation of the trust in said will was for the individual use and enjoyment of said Adele Masson as to net income and principal, subject to the terms and conditions of the will of said decedent; that by virtue of the contest of said will commenced by Adele Masson as aforesaid, together with the results flowing therefrom as aforesaid, including paragraph Sixth of said will, the reasons for the creation of said trust ceased to exist, and said trust ceased and terminated and never came into effect or being, and that Wells Fargo Bank & Union Trust Company is entitled to have distributed to it nothing under said will, and the entire rest and residue of said estate should be distributed to Nelty Lefranc Horney, free from any trust or other restriction.’

The theory upon which the court held that the remainder should be accelerated and the property distributed as if Adele Masson were dead, is not entirely clear. The court clearly held that, because of the forfeiture of Adele's rights under the will, the purpose of the trust had failed. But whether it also held that the remainder interest should be accelerated because Adele was incapable of bearing children is by no means clear.

It is clear that Adele Masson has forfeited her rights under the will. In this state it is the law that provisions in a will for the forfeiture of an interest of a legatee if he contests the will are valid, and operate to forfeit the interests of the contestant under the will. Estate of Hite, 155 Cal. 436, 101 P. 443, 21 L.R.A.,N.S., 953; Estate of Miller, 156 Cal. 119, 103 P. 842, 24 L.R.A.,N.S., 868; In re Kitchen's Estate, 192 Cal. 384, 220 P. 301, 30 A.L.R. 1008; Lobb v Brown, 208 Cal. 476, 281 P. 1010; Estate of Howard, 68 Cal.App.2d 9, 155 P.2d 841. Adele concedes this to be the law, but she contends, among other things, that, because of the forfeiture of her life estate, all that the will disposed of was the remainder in the residue; that the will failed to dispose of this life estate in the event it was forfeited; that intestacy results as to this life estate; that she is entitled to one-half of the life estate as one of the two heirs at law. She also contends that the forfeiture of her life estate could not affect the rights of her unborn children in the remainder upon her death.

We are of the opinion that there is no escape from the conclusion that upon the life estate being forfeited because of the contest, there being no provision in the will disposing of this life estate in such contingency, that intestacy resulted as to this life estate, and that Adele may share in that life estate as an heir at law.

If a testator disposed of only the remainder of his estate which was to vest upon the death of X, but failed to dispose of the life estate, there would be no doubt at all in this state that, as to the life estate, intestacy results, and such life estate would go to the heirs at law. The same result follows where the intervening life estate provision is void, invalid, or is defeated by renunciation or by a forfeiture resulting from a will contest. California does not follow the doctrine existing in some states of acceleration of remainders. See Simes, ‘The Acceleration of Future Interests,’ 41 Yale Law Journal, 659; 30 Yale Law Journal, 849; see, also, Moxley v. Title Ins. & Trust Co., 27 Cal.2d 457, 165 P.2d 15, 163 A.L.R. 838, particularly authorities cited in Mr. Justice Traynor's dissent at page 469, et seq., of 27 Cal.2d, at page 21 of 165 P.2d. This doctrine is prohibited in this state by section 780 of the Civil Code which, since 1872, has provided: ‘When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years.’

In re Estate of Arms, 186 Cal. 554, 199 P. 1053, is one of the leading cases on this subject. There, by will, a husband devised to his wife a life estate in the residue of his estate, all his separate property, with a devise of the remainder to take effect upon her death to residuary legatees. The wife renounced her life estate, and elected to take independently of the will. The probate court held that this accelerated the remainder, and that the residuary legatees took not only the remainder bequeathed to them, but also the life estate renounced by the wife. This was reversed by the Supreme Court. It held that the life estate, having been renounced, became a part of the estate of which no disposition had been made, that it therefore went by the rules of intestacy, and the wife was receive a share thereof. Much of the language in the opinion is pertinent to the case under consideration. At page 564 of 186 Cal., at page 1057 of 199 P., the court stated:

‘The appellant claims further that the court below erred in distributing the entire interest in the real property to the two residuary devisees. The theory advanced in support of this contention is that upon her election to renounce the will and take under the law the life estate given to her became ineffective; that that interest in the real property thereupon went back into the general estate, and, not having been effectually disposed of by the will, the testator died intestate as to that life estate. This being the case, and it being his separate property, as we have seen, they say that under the Code one half of it descended to her and the other half to his brothers and sisters and the descendants of such as are dead * * *, and that it should have been distributed accordingly.

‘We see no escape from the conclusion that the widow is entitled to distribution of a one-half interest in this real estate for the period of her own life. The terms of the will are such that the estate given to the two residuary devisees did not begin in possession and enjoyment until after her death. It provides that ‘Upon the death of my wife, * * * and out of the remainder and residue of my property and estate unused and unexpended for my said wife’ the legacies amounting to $20,000 were to be paid, presumably by the executors, since no provision is made for the payment by any trustees or other person. The residue is then given by the following words:

“Upon the death of my wife, * * * and after the payment of all of the gifts, devises and bequests hereinbefore mentioned and provided are paid and distributed, I give, devise and bequeath all of the rest, remainder and residue of my property,' to Gertrude Heath and George L. Arms.

‘The phrase ‘upon the death’ usually refers to the time of enjoyment and not to the time of vesting, and doubtless it was so used here. But the decisive point here is the time of enjoyment, and it is clear that this did not begin until after the happening of both of the events mentioned, namely, the death of the widow and the payment of the legacies which did not become due until her death. Hence the estate in the property in the meantime was not included in the residue described and did not go to said residuary legatees, but was disposed of only by the provision for the wife, and when she renounced it that portion of the estate remained without effective testamentary disposition. As to that, the effect was the same as if he had died intestate.

‘Where a legacy or devise is rejected by the beneficiary, and there is a residuary clause which would include it by its terms, the property so refused goes into the residue, and the residuary legatee or devisee takes it by virtue thereof. [Citing authorities.] But if the residuary clause is not general or is not couched in language that would include the property so refused, such property goes to the heirs at law as property of which the testator died intestate. [Citing authorities.] * * * When the widow elected to take under the law and renounced the provisions of the will for her benefit, the devise to her of the use, rents, and income of the real property in question during her natural life became inoperative, and that portion of the estate of the testator therefore fell into the undisposed of residue and descended to his heirs at law. The widow was one of the heirs of the husband, with respect to his separate estate, and under the circumstances of this case she was entitled to one-half of all the property not disposed of by the will. It follows that she was entitled to one half of this life estate, and the other half thereof descended in equal shares to the brothers and sisters of the testator and to the children or grandchildren of any deceased brother or sister by right of representation. [Citing an authority.] * * *

‘There are cases which hold that upon a refusal of the widow to take a life estate given in lieu of her positive rights under the law, such as dower or other interest in land not subject to the husband's testamentary disposition, where there is a remainder over to residuary devisees, the vesting of the remainder is accelerated, so that the residuary devisees may take before the widow's death. But the weight of authority and the better reason is the other way. [Citing a case.] In effect, such a doctrine would operate as a judicial devise of the decedent's estate—a supplementary will not made by the testator. We think the court is without power to do that, even if it would be more convenient in the particular case. Moreover, it appears to be contrary to section 780 of the Civil Code.’

This same doctrine applies where a legacy is forfeited because the legatee contests the will in violation of a ‘no contest’ clause in the will. This was the precise situation presented in Estate of Mathie, 64 Cal.App.2d 767, 149 P.2d 485. There the testatrix bequeathed the residue of her estate one-half to her husband and one-half to her daughter by a previous marriage. The will contained a clause providing: ‘If any devisee or legatee hereunder contest this Will, or any part or provision hereof, any share given to such devisee or legatee is hereby revoked and shall become void.’ 64 Cal.App.2d at page 779, 149 P.2d at page 492. The will also contained a clause to the effect that: ‘I have, except as otherwise in this Will specified, intentionally and with full knowledge omitted to provide for my heirs living at the time of my decease.’ 64 Cal.App.2d at page 779, 149 P.2d at page 492. The trial court found that the husband fraudulently destroyed this will, so that it had to be proved as a lost will, and fraudulently presented for probate an earlier and superseded will. This, of course constituted a ‘contest’ of the later will. The probate court distributed the entire residue to the daughter. This was reversed, the court holding that there was intestacy as to the husband's one-half, and that the husband was entitled to share therein as an heir at law. At page 779 of 64 Cal.App.2d, at page 492 of 149 P.2d, the court stated:

‘The ‘Fourth’ paragraph of the will provides that any share given to a legatee or devisee who contests the will shall be revoked and become void, but it does not provide that such legatee or devisee shall not receive any part of the estate. Ineffectual legacies and devises pass into the residuum unless a contrary intention is shown by the will. * * * ‘* * * As there were no bequests or devises other than the trust provision which disposed of the entire estate, there was no ‘residue’ involved.' See Estate of Moorehouse, 1944, 64 Cal.App.2d 210, 148 P.2d 385. There is no residuary legacy or devise in the present will.

‘Since there is no residuary legacy or devise, the decedent died intestate as to the portion of the estate which appellant would have received under the will, unless that portion was otherwise disposed of by the will. * * * Even if a proper construction of said paragraph ‘Third’ is that the testatrix did not intend that appellant should receive any part of her estate if he contested the will; nevertheless, the testatrix did not direct what disposition should be made of the portion appellant would have taken if he had not made a contest. Paragraph ‘Fourth’ merely provides that ‘any share’ of a beneficiary shall be revoked and ‘become void’ in the event of a contest by such beneficiary. Said paragraph does not include the provision that is frequently in a contest clause that if a beneficiary contests the will he shall not receive any part of the estate. Even if said paragraph ‘Fourth’ had included such a provision that the beneficiary should not receive anything if he contested the will, there was no provision therein directing what disposition should be made of the portion appellant would have received if he had not contested. It was also argued by the daughter that the other heir mentioned as a beneficiary in the will, the daughter, would be entitled to receive the portion which appellant would have received, since the will provided that no heir other than the two mentioned should receive any part of the estate, and since the appellant could not receive his portion that the daughter is the only remaining heir not prohibited by the will from receiving a part of the estate. The will provided, however, that the daughter should receive only one-half of the estate, and did not provide that she should receive the portion which appellant would have received if he had not contested the will. The court cannot add to or change the provisions of the will, and therefore cannot order that the ineffectual legacy or devise, the portion provided for appellant, be distributed to the daughter.'

The same rules apply in the case of lapsed legacies. See, In re Estate of Fritze, 85 Cal.App. 500, 259 P. 992.

In the instant case we have a trust set up for the sole purpose of paying the income of the residue of the estate to Adele for life. Upon her death the will provides that the remainder shall vest in the children of Adele, that if Adele leaves no children then to Nelty, and if she predeceases Adele, then to the children of Nelty. The probate court has given the entire estate to Nelty during the lifetime of Adele. In this fashion the court has cut off the rights of Adele's unborn children and the contingent rights of Nelty's living children. The probate court has, by thus accelerating the remainder, redrafted the testatrix' will by giving to Nelty the life estate not disposed of by the will. Even if Adele were not permitted to share in the life estate, or if it were held that Adele could not bear children, the probate court could not accelerate the remainder and increase the bequest of the remainder to include the life estate.

Respondent urges that she can show that Adele is incapable of bearing children because of an operation, and urges that, in such cases, the court is justified in finding that there is no possibility of Adele having children. That is an interesting problem. Generally, in America, in dealing with this question in relation to the distribution of property, the termination of trusts and the rule against perpetuities, it has been held that, regardless of age or physical condition, even where hysterectomies have been performed, it must be conclusively presumed that a woman is capable of bearing children. See annotation 146 A.L.R. 794; see for a discussion of the policy behind this rule Ricards v. Safe Deposit & Trust Co., 97 Md. 608, 55 A. 384, 63 L.R.A. 145. This seems to be the California rule. Fletcher v. Los Angeles Trust & Savings Bank, 182 Cal. 177, 187 P. 425; In re Estate of Sahlender, 89 Cal.App.2d 329, 201 P.2d 69. The Restatement has adopted a contrary view. See 2 Restatement of Trusts, § 340, Comment e; 3 Restatement of Property, § 274. In interpreting tax statutes the United States Supreme Court had adopted the view of the Restatement. U. S. v. Provident Trust Co., 291 U.S. 272, 54 S.Ct. 389, 78 L.Ed. 793. This is a most interesting legal question, but it is not here involved. That is so because not only are the rights of unborn children of Adele involved, but also the rights of the children of Nelty and the rights of Adele as an heir. Moreover, regardless of whether Adele may or may not have children the indisputable fact remains that all that Nelty was to receive under the will was a remainder interest. That interest cannot be increased by judicial fiat.

Respondent urges that such a holding defeats the intent of the testatrix because it was her intent that any person contesting the will should not share in her estate. The will does not so provide. If that had been the intent of the testatrix she would have provided what was to happen to the life estate if Adele instituted a contest. By not so providing, intestacy resulted when the contingency occurred, and Adele, as one of the heirs at law, is entitled to share in this life estate.

Far from defeating the intent of the testatrix, so far as we can ascertain it, such result is in accord with such intent. From the testimony of the attorney who drafted the will, which testimony was introduced in this hearing by respondent, it appears that her main concern was to take care of Adele. She believed Adele to be incompetent to handle her own affairs and needed protection. She, apparently, never contemplated that Adele would contest the will. Had she contemplated that contingency, and had she intended in that event that Adele was to receive nothing, she would have provided for that contingency by an alternative devise of the life estate. Because she devised Nelty, an heir of equal rank to Adele, nothing but a contingent remainder which might be defeated by birth of issue to Adele or by Nelty predeceasing Adele, she must have feared that Nelty might contest the will, and so put in the ‘no contest’ clause. By forfeiting Adele's interest in the trust, and distributing to Adele a one-half interest in the undisposed of life estate, Adele will be afforded at least part of the protection desired by the testatrix.

Respondent makes much of the fact that the ‘no contest’ clause provides that if a contest is instituted, then the testatrix gives ‘to such person so contesting or objecting the sum of $1.00 and no more in lieu of the provision which I have made, or which I might have made herein for such person,’ and urges that this indicates that it was the intent of the testatrix to disinherit a contestant completely. We do not so construe the language. What the language means is that a contestant shall receive but $1.00 so far as the will is concerned. The language cannot reasonably be construed to mean that the testatrix was intending to disinherit an heir so far as property not disposed of in the will was concerned. To accomplish that result clear and unequivocal language should be required. In the Estate of Mathie, 64 Cal.App.2d 767, 149 P.2d 485, 492, already discussed at length, the will expressly provided that the testatrix had ‘intentionally and with full knowledge omitted to provide for my heirs living at the time of my decease,’ and that in the event of a contest the share given to such contestant ‘is hereby revoked and shall become void.’ 64 Cal.App.2d at page 779, 149 P.2d at page 492. The court refused to interpret that language so as to prevent a contestant from sharing in the portion of the estate as an heir that had been forfeited by reason of the contest.

For the foregoing reasons it is our opinion that Adele Masson is entitled to share in the life estate of the residue as an heir at law.

The decree appealed from is reversed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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