TAYLOR v. GEORGE

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District Court of Appeal, Third District, California.

TAYLOR v. GEORGE.

Civ. 7573.

Decided: April 20, 1949

Mazzera, Snyder & Demartini, and J. Cal. Snyder, all of Stockton, for appellant. O.C. Parkinson, of Stockton, for respondent.

The plaintiff has appealed from a judgment which was rendered against her in a suit against the executrix of the last will of Charles Williams, deceased. She sought to recover an allowance awarded to her in the final decree of a former divorce suit between said spouses, of $50 per month for the maintenance of their minor child until he attained twenty-one years of age. The trial court determined in this case that plaintiff was entitled to no relief by her action.

This case was heard upon a written stipulation of facts to which there were attached as exhibits the interlocutory and final decrees of divorce, the executed written settlement of property rights, including therein an agreement to pay plaintiff said $50 per month as maintenance for the child until he “attains the age of 21 years”, a deed to certain real property, the last will of the decedent, and plaintiff's claim for $5,500, being the aggregate amount of said award of maintenance from the date of death of her former husband to the time when the child will reach his age of majority, November 1, 1955, which claim was duly presented to the probate court and rejected.

Assuming that the stipulation covered all essential facts, the court adopted no findings.

The stipulation of facts shows that plaintiff and Charles E. Williams were formerly husband and wife; that there was born, November 7, 1934, as the issue of said marriage, one son, Charles E. Williams, Jr.; that dissensions arose between the spouses; that they executed a written property settlement agreement on October 1, 1942, by the terms of which their community property was divided equally between them, and it was agreed the wife should have the custody of their minor child, and that the husband would pay to her, as maintenance for the child, the sum of $50 per month until it “becomes self-supporting” or “attains the age of 21 years”; that plaintiff brought suit against her husband for divorce, in which the final decree of divorce was awarded to her November 8, 1943, on the ground of his extreme cruelty. By the terms of that decree she was given exclusive custody of the child and $50 per month for its maintenance until the child becomes self-supporting, or attains the age of 21 years. It was stipulated that all of said payments were made to the time of the death of the husband; that the plaintiff thereafter married Mr. Taylor; that, on May 23, 1944, Mr. Williams executed his last will, in which he explained his failure to devise or bequeath any property to his said son, in the following language: “2. I have in mind my said son, Charles E. Williams Jr., and expressly make no provision for him in this Will for the reason that I have in force policies of life insurance upon my own life, in which he is named as Beneficiary, in the amount of $7000.00, and feel that such provision is, and will be sufficient for his needs so far as any contribution from me is concerned.”

The will gave his entire estate to his sister, Marjorie George, and named her as executrix to serve without bond. Mr. Williams died August 6, 1946. The will was admitted to probate, and the defendant was appointed and qualified as executrix thereof. Plaintiff presented in due time to the executrix of the estate of said decedent her claim for $50 per month for maintenance of the child from September 1, 1946, to November 1, 1955, aggregating the sum of $5,500, which claim was rejected.

The stipulated facts further show that plaintiff was appointed guardian of the person and estate of said minor child and that the insurance companies which issued the policies upon the life of decedent subsequently contracted with plaintiff, as guardian of the minor, to transfer to her said policies for the benefit of the minor child; that said policies so transferred were as follows: Equitable Life Insurance Company, in the sum of $5,000, Metropolitan Life Insurance Company, in the sum of $1,000, and Brotherhood of Painters, in the sum of $176.28; that a small trust fund held by the decedent in a local bank, in the sum of $43.53, was also transferred to the plaintiff in trust for said minor child.

The appellant contends that the court erred in failing to adopt a finding that the testator, by the terms of his will, intended to discharge his obligation to pay plaintiff the installments of maintenance for the child accruing after his death, by continuing in force the insurance policies on his own life for the benefit of the child; that the stipulated facts upon which this case was tried do not show that the testator intended to or did pay or provide for the payment of said installments for maintenance accruing after his death; and that the judgment that plaintiff take nothing by her action is not supported by the evidence because the award in the decree of divorce of $50 per month for maintenance of the minor child until it arrives at the age of majority, or becomes self-sustaining, did not terminate at the death of the husband, but became a valid claim against his estate for all subsequently-accruing installments.

It has been determined in California, contrary to the common law rule, that an unmodified award against the husband in a divorce decree of a specified sum to be paid to the wife by the husband for maintenance of their minor child until it attains the age of majority or becomes self-sustaining, does not automatically terminate upon his death when the term for which said payments are allowed has not expired. At least, it has been held such subsequently-accruing installments for maintenance of a minor child are valid claims against his estate when the husband has executed a written agreement to pay them, as he did in the present case. Newman v. Burwell, 216 Cal. 608, 612, 15 P.2d 511; Estate of Caldwell, 129 Cal.App. 613, 19 P.2d 9; Estate of Smith, 200 Cal. 654, 659, 254 P. 567; Myers v. Harrington, 70 Cal.App. 680, 684, 234 P. 412; Stone v. Bayley, 75 Wash. 184, 134 P. 820, 48 L.R.A., N.S., 429; 27 C.J.S., Divorce, § 323c, p. 1252; 17 Am.Jur., sec. 706, p. 536; 50 A.L.R. 241, note.

The respondent asserts that this action will not lie against the executrix of the estate of Charles Williams, deceased, because it is not founded on contract and does not come within the provisions of Section 573 of the Probate Code. We think the action is authorized by that section. It then provided that: “Actions for the recovery of any property, real or personal, * and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates, *.”

This action is founded on the executed contract settling property rights, in which the husband agreed to pay his wife $50 per month for maintenance of the child until it attains the age of majority, or becomes self-supporting. That identical language is also included in both the interlocutory and final decrees of divorce. Regardless of the fact that the decree of divorce failed to refer to the former contract or specifically include its terms therein, the court made its order for maintenance in exact accordance with the former agreement, and it is therefore adequate to support the claim in this case. Estate of Caldwell, supra; Parker v. Parker, 193 Cal. 478, 225 P. 447.

The respondent also asserts that the claim which was presented to the executrix in this case and rejected is inadequate as the foundation and prerequisite to the maintenance of this suit, because it merely refers to the final decree of divorce and not to the former contract. We think the claim was adequate to inform the executrix or the probate court of the nature, extent and grounds upon which the claimant sought to charge the estate. It specifically stated that it was for “support and maintenance of Charles E. Williams, Jr., the minor son of claimant and said decedent,” for $50 per month from September 1, 1946, to November 1, 1955, as provided by the final decree of divorce, a copy of which was attached to the claim, and made a part thereof. The decree to which the claim refers contained the order for maintenance in exact accordance with the stipulation of the property settlement agreement. The validity of the claim did not depend on the existence of the contract. assuming that the maintenance of the action against the estate, under Section 573 of the Probate Code, depended upon the existence of the contract, that was merely procedural in nature. As the court says in Estate of Caldwell, supra, 129 Cal.App. at page 615, 19 P.2d at page 10: “The matter of having the agreement incorporated in the divorce decree would affect the manner of enforcement only.” We conclude that the claim was not defective in form merely because it did not refer to the contract or attach a copy of it to the claim. The allowance of a claim is a mere acknowledgment of a debt against the estate. Estate of Naegely, 31 Cal.App.2d 470, 475, 88 P.2d 715; Estate of Bell, 168 Cal. 253, 259, 141 P. 1179; 11A Cal.Jur. 507, sec. 574. The rejection of a claim is, in effect, a repudiation of the claimed debt. We conclude that the claim which was presented and rejected in this case is sufficient in form to comply with the statute as a necessary prerequisite to the maintenance of this action. The claim was attached to the complaint and its presentation and rejection were pleaded. The defendant failed to demur to the complaint on account of alleged defects in the form of the claim, or at all.

There is absolutely no evidence in this case of the termination of decedent's obligation to pay $50 per month for maintenance of the child until it attains the age of majority, unless the above-quoted paragraph of the will may be reasonably construed, by inference, to terminate the obligation on account of what it states with relation to the insurance policies. There is no evidence that the property agreement was ever modified or rescinded by the parties, or that the divorce decree was modified in that regard. We must assume they were not changed. This court must, therefore, determine from the language of the will whether the life insurance policies referred to therein, with the child named as beneficiary thereof, constituted a termination of the testator's obligation to pay his wife the installments for its maintenance after his death.

When a cause is submitted for determination upon an agreed complete statement of ultimate facts, the adoption of findings by the trial court is ordinarily unnecessary. Alderson v. Cutting, 163 Cal. 503, 126 P. 157, Ann.Cas.1914A, 1; Estate of Hartman, 21 Cal.App.2d 266, 68 P.2d 744; 24 Cal.Jur. 953, sec. 192. But when the stipulation covers evidentiary facts upon material issues, as distinguished from ultimate facts, it is the duty of the trial court to adopt findings determining such evidentiary facts. The appellant is entitled to such findings. Crisman v. Lanterman, 149 Cal. 647, 655, 87 P. 89, 117 Am.St.Rep. 167; Zimmerman v. Continental Life Insurance Co., 99 Cal.App. 723, 727, 279 P. 464. When all of the material issues are covered by an agreed statement of ultimate facts the record presents a mere question of law for determination of the court. Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825; 5 C.J.S., Appeal and Error, § 1661, p. 753; 24 Cal.Jur. 953, sec. 192. But in the present case there was no complete stipulation of ultimate or probative facts, and no findings upon the necessary issue with respect to the termination of the decedent's obligation to pay his wife maintenance installments which accrued after his death. In the absence of evidence showing that the obligation terminated, we must assume that it continued.

In the absence of other evidence upon the subject, a reviewing court is not bound by the construction of the trial court of the language of a contract or the provisions of a will unless it is clear and certain. When the instrument is before the reviewing court it must construe the language and determine its meaning and effect as a matter of law. Estate of Platt, supra; La Lumia v. Northern California Packing Co., 75 Cal.App.2d 917, 172 P.2d 94; Fischer v. Means, 88 Cal.App.2d 137, 198 P.2d 389; 6 Cal.Jur. 326, sec. 192. It is true that when there is other evidence reasonably to support the trial court's construction of the language of the contract, a reviewing court may not assume the authority to otherwise construe the instrument. Estate of Rule, 25 Cal.2d 1, 11, 152 P.2d 1003, 155 A.L.R. 1319. In Estate of Norris, 78 Cal.App.2d 152, 177 P.2d 299, 303, it is said with respect to the duty of a reviewing court to construe the language of a contract, decree, or will which is involved on appeal, in the absence of other evidence of its meaning, that: “* Inasmuch as no extrinsic evidence was introduced on this issue, the question of the proper interpretation of the decree is a question of law and not of fact. Whatever confusion might have existed in the law on this subject prior to 1942 was set at rest by the decision in Estate of Platt, 21 Cal.2d 343, 131 P.2d 825. Since the decision of that case it is settled law that the interpretation of a document, including a will or a decree, is a question of law, and that it is the duty of an appellate court in such cases to interpret the document independent of the construction given to it by the trier of the fact, and to make a final determination in accordance with the applicable principles of law. [Citing authorities.]”

When the language of a contract or decree which is required to be construed is uncertain or ambiguous with relation to its effect upon a necessary issue involved in the case the appellant is entitled to a finding on that subject.

In this case no findings were adopted. It is true that the trial judge, in his “memorandum opinion” said, “The court concludes that the decedent, Charles Williams, intended that the insurance policies should be the means of payment of the sums payable for the support of his minor son,” and that “the delivery of those insurance policies and other sums to the plaintiff constituted a full payment and satisfaction of any liability that may continue to survive under that decree against the estate of Charles Williams, deceased.” But, in spite of the fact that the opinion of the trial judge may now be included in the record on appeal (Rule 5(a) Rules on Appeal), it may not be substituted for the omission of necessary findings nor serve to modify or change the findings which are adopted in the decision of the court. Lord v. Katz, 54 Cal.App.2d 363, 367, 128 P.2d 907; Nestor v. Burr, 124 Cal.App. 369, 12 P.2d 479; Blackwell v. Ferrari, 60 Cal.App.2d 13, 18, 139 P.2d 997; 2 Cal.Jur. 688, sec. 394; Phillips v. Hooper, 43 Cal.App.2d 467, 111 P.2d 22, 23. In the case last cited, citing with approval Goldner v. Spencer, 163 Cal. 317, 125 P. 347, the court said: “* It has been held that the findings of fact must be taken as embodying the conclusions of the trial court on all questions of fact submitted to it for decision. Goldner v. Spencer, 163 Cal. 317, 125 P. 347. And no antecedent expressions of the judge can in any way restrict his absolute power to declare his final conclusion, in the only manner authorized by law, to wit, by filing his ‘decision’ (findings of fact and conclusions of law), provided in sections 632 and 633 of the Code of Civil Procedure. [Citing authorities.]”

The respondent suggests that if a finding as to the termination of the obligation is necessary, this court is authorized by Section 956a of the Code of Civil Procedure to adopt such finding. Rule 23 of Rules on Appeal provide that when such a request is made it shall contain “a draft of the proposed findings”, which does not appear in respondent's brief.

We are unable to construe the will as evidence that the testator gave to his minor child the proceeds of the insurance policies by making him sole beneficiary thereof as payment of his agreed installments for the child's maintenance after his death, or that the gift of the insurance money operated as a termination of his obligation in that regard. Gainsburg v. Garbarsky, 157 Wash. 537, 289 P. 1000, 1002. We are of the opinion the previously-quoted paragraph of the will may not be construed to terminate the testator's obligation to pay said maintenance installments accruing after his death. Nor are we directed to any evidence which supports that theory. The will does not mention that obligation, or the provision of the divorce decree, or the existing property settlement agreement in which he promised to pay his wife $50 per month for maintenance of the child until it reached the age of majority. Nor was any evidence adduced to support the judgment that plaintiff was entitled to take nothing by her action. Paragraph two of the will, which contains the only reference to the insurance policies, appears to be a mere explanation of the reason why the testator gave nothing to his child by the terms of the will, realizing that an omission to mention the existence of his only blood relation who would normally be entitled to his bounty would be some evidence of an unnatural will. The will does not purport to give the proceeds of those policies to the child. It does not state that the policies had been or would be procured for the benefit of the child in lieu of the obligation to pay maintenance installments. It clearly states that “I have in force policies of life insurance upon my own life”, of the value of $7,000, and that the testator feels “such provision is, and will be sufficient for his needs so far as any contribution from me [in the will] is concerned.” Clearly, the policies in question were issued long before the will was executed. The policies were taken out before the execution of the property settlement agreement in October, 1942, because the agreement provides that the husband will pay all premiums on a policy of $500 then issued upon the life of the child, and that “other insurance policies” then existing on the husband's life, “shall be his [the husband's] without restriction, with right to change beneficiary, cash or otherwise dispose of the same.” That statement clearly infers that when the agreement was executed the policies in question existed with the child named therein as sole beneficiary. The policies were therefore given to the child prior to the execution of that contract in which the husband agreed to pay his wife the maintenance installments. If the reservation to change the beneficiary had been intended to modify or limit the payment of maintenance installments, the contract should have so stated. The contractual obligation to pay those installments was definite and unlimited. It is evident that the husband never did change the beneficiary, for the will states that fact, and the stipulation recites that the policies were transferred by the insurance companies to plaintiff as guardian of the child after the death of the husband. The language of the will to the effect that the testator feels that “such provision is, and will be sufficient for his [the child's] needs so far as any contribution from me is concerned,” read in connection with the preceding statement, should be construed to mean that since the testator has previously adequately provided for the child by means of the policies, he therefore made no further provision for it in the will.

We conclude that the will furnishes no evidence that the obligation to pay maintenance installments terminated. The stipulation of facts, contract and decree of divorce indicate that the obligation had not terminated.

For the foregoing reasons, the judgment is reversed and the trial court is directed to ascertain the amount of unpaid installments and to render judgment for plaintiff in that amount.

THOMPSON, Justice.

ADAMS, P.J., and PEEK, J., concur.