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District Court of Appeal, First District, Division 2, California.


Civ. 12396.

Decided: November 04, 1943

John J. Taaffe and Bernard Nugent, both of San Francisco, for appellant. J. W. Coleberd, of South San Francisco, for respondent.

This is an appeal from an order of the superior court which denied a first amended petition for partial distribution in the matter of the estate of Arturo Micheletti. Petitioner is the adult daughter of Arturo Micheletti. She filed her petition for partial distribution as an heir at law, alleging that the residuary bequest in her father's will was void in that it unlawfully suspended the power of alienation in violation of section 715 of the Civil Code. In order to understand fully the questions presented by the appeal, it is necessary to present the entire testamentary scheme of the testator although the problem centers around the validity of the testamentary trust of the residue.

Arturo Micheletti at the date of his death on September 21, 1940, was married to Teresa Micheletti, his second wife. Surviving him were this wife, two minor sons by this second marriage born June 24, 1928, and April 8, 1930, and two adult children of a former marriage, one of whom, Fosca Pucheu, is the appellant here. Teresa Micheletti also had a son by a former marriage. The testator bequeathed certain household furnishings to his wife for life and upon her death these furnishings were to go to the two minor sons and “to all of (his) children born of (his) present marriage after the date of this will and to those of them surviving (him), and to the surviving issue of them predeceasing (him) by right of representation.” Other personal effects were given to her absolutely and no other provision was made for her except the above. To the appellant Fosca Pucheu he bequeathed $2,500. To his adult son, Otello Micheletti, he gave $2,500, a piece of real estate, and $60 a month for his life to be taken from the income of a separate trust established by the will. To the son of his wife by her former marriage he left $1,000. The residue of his estate was to be placed in trust for the benefit of his children by his present marriage which residue was to be increased by the amount held in the trust for Otello Micheletti at Otello's death.

In the opening paragraph of the “Tenth” provision which created the trust the testator makes it clear that the main beneficiaries of the trust are to be the two minor sons, any other afterborn children, and the surviving issue of any children predeceasing the testator. This interpretation coincides with the intent shown by the provision made for the remainder interest in the household furnishings following Teresa Micheletti's death. By subdivision (a) of the “Tenth” provision the testator provided that the income of the trust should be used for the support and maintenance of the above mentioned principal beneficiaries until each beneficiary attained the age of 25. As only the two minor sons, who were 10 and 12 years old at the testator's death, were born or survived the testator, there is no possibility that the trust for their support and maintenance till they reach 25 will suspend the power of alienation beyond lives in being or 25 years. By subdivision (c) of the “Tenth” provision the testator provided that his two sons should take an absolute interest in one–half the trust as each reached 25 and 32 respectively. In the event either or both died without issue prior to coming into possession, no provision is made. An intestacy would result and the testator's heirs at law would take. In the event either one died with issue surviving, the issue were to take the deceased son's share when they reached the age of 21. Finally he provided that the trust corpus should be subject to certain general spendthrift trust provisions.

Preliminary, it should be noted that we have only the interests of the two minor sons and their issue mentioned to deal with as the testator had no children born subsequent to the execution of the will. “The time of the death of the testator is deemed to be the time of the ‘creation of the limitation, condition, or future interest’ declared to be void by the Code sections above mentioned. Civ. Code, 749. Section 716 declares that ‘every future interest is void in its creation which, by any possibility,’ may suspend the power of alienation longer than the Code permits. This possibility is to be determined by the conditions existing ‘at the time of the creation’ of the limitation or future interests, that is, at the time of the death of the testator.” In Re Estate of Whitney, 176 Cal. 12, 15, 167 P. 399, 401. By reason of this principle, subdivision (d) of the “Tenth” provision of the will is of no force and effect as it is obvious the testator intended its operation only in the event he had after–born children. It provided that these after–born children and their issue should share in the trust to the same extent as the two minor sons and their issue shared. Further, it should be noted, in answer to part of appellant's argument, that the possibility of a posthumous child, who, undoubtedly, the testator intended to take an interest under the trust, would not create a suspension beyond lives in being as such child is to be “deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth * * *.” Civil Code, sec. 29; Probate Code, secs. 123, 250.

Appellant contends that the interests limited by the testamentary trust to the issue of Arturo Amadeo and Manlio Elmo Micheletti suspend the power of alienation beyond lives in being or 25 years, and will not vest in interest within lives in being and 21 years. She asserts that the whole trust is void by reason of this contention. With this conclusion we cannot agree. Assuming, without deciding, that the interests in favor of issue do violate the provisions of Civil Code, § 715, and the constitutional prohibition against perpetuities, we conclude that the assertedly invalid provisions are separable from the interests created in Arturo Amadeo and Manlio Elmo Micheletti. In Re Estate of Troy, 214 Cal. 53, at page 59, 3 P.2d 930, at page 933, the court states the question to be decided: “May the invalid provisions be cut from the will and the balance stand as the will of the testator, or will such an operation have the effect of making a provision for the testator which is contrary to his intent or which will destroy his general plan or scheme? The answer must be obtained from a consideration of the terms and provisions of the will itself. That trust provisions for a valid term may be separated from those providing a trust for an invalid period was decided in Nellis v. Rickard, 133 Cal. 617, 66 P. 32, 85 Am.St.Rep. 227.” The dominant intent of the testator Arturo Micheletti manifestly was to provide for the children of his second marriage. Further, it appears that he did not want them to have the corpus until they were mature enough to handle large sums of money. In the event all the children of his second marriage died without issue, prior to coming into possession of their shares, he died intestate as to the major portion of his estate. In the event his children died with issue he desired these children to have his estate. But this disposition of the remainder was an afterthought of the testator. This conclusion is supported by the inartistic wording of the executory interests created and the absence of cross–remainders between the two sons in the event one died without issue, the other son surviving. The testator indicated no objection to benefiting his heirs at law so long as his minor sons were provided for adequately. We cannot say that the testator would not have wanted the interests limited in favor of his sons to stand if their issue could not take. It seems reasonably certain that had the testator known that the interests limited in favor of the issue were invalid, he would still have wanted his general division of property to stand, namely the major portion going to the children of his second marriage in the event they survived to the ages of 25 and 32 respectively.

This case is clearly distinguishable from In re Estate of Van Wyck, 185 Cal. 49, 196 P. 50, and In re Estate of Whitney, 176 Cal. 12, 167 P. 399. In both of those cases the testator's general scheme would have been defeated had only the void executory interest been struck down. In both cases the testator had attempted to make an equitable division of his property among his heirs at law. By striking down only the executory interest either the division became disproportionate or the sole heirs at law were also the life tenants. The testamentary scheme before us is controlled by the principles of separability announced in Re Estate of Troy, 214 Cal. 53, 3 P.2d 930. At page 62 of 214 Cal., 3 P.2d at page 934, it is said that the test in determining separability is: “Will such an operation serve but to cut off only an incidental or insubstantial portion of the testator's express scheme and purpose, and, without working an injustice among the beneficiaries, have the effect of preserving rather than defeating his main scheme or plan for the disposition of his property?” To cut off only the assertedly void interests in the issue of the two minor sons works no injustice among the testator's intended beneficiaries. If those interests alone, as the testator attempted to create them, be void, then the rule of the Troy case requires that they be struck down so that the main scheme or plan of the testator may be preserved and accomplished.

For the reasons expressed the order is affirmed.

NOURSE, Presiding Justice.

SPENCE, J., and DOOLING, Justice pro tem., concur.

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