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


Civ. 14496.

Decided: March 30, 1951

G. I. Hoffman, S. Joseph Theisen, San Francisco, for appellant. J. Clark Benson, San Francisco, for Shriners Hospital for Crippled Children, respondent. Marion Vecki and John E. Anderton, San Francisco, for respondents Walter Both, as executor of the Last Will and Testament of William Austin Field, Walter Both and Martha S. Both.

W. A. Field died testate on January 6, 1949, of the age of about 80 years. His wife, of about the same age, died testate June 19, 1949. At the time of the execution of the will Mrs. Field had been declared incompetent and had been under the care of her husband as guardian. Under the terms of the will the wife was given a life estate in all the property with the right to use all principal and income as needed. On her death certain real property was to go to two friends of the testator, the residue to the Shriner's Hospital for Crippled Children of San Francisco. Appellant was appointed administratrix with will annexed of the estate of Mrs. Field which was executed in 1900 and left all her estate to the husband who predeceased her. On July 21, 1949, within the statutory period, this administratrix filed her petition, as administratrix only, to revoke probate of the husband's will. That will had been admitted to probate on January 25, 1949. A demurrer was sustained without leave to amend and a subsequent motion to amend was denied. The appeal was taken from these orders. As the second order is not an appealable order under section 1240 of the Probate Code that appeal will be dismissed.

The controlling question is whether the petitioner, as administratrix, was an ‘interested person’, entitled to contest the will within the terms of section 380 of the Probate Code. (The petitioner sued as administratrix only, and not in her individual capacity as an heir.)

A direct answer to the question cannot be found in any of our decisions. If the contest were confined to the charitable bequest to the Shriners' Hospital the will would not be subject to attack by this appellant under the rule of Estate of Bunn, 33 Cal.2d 897, 206 P.2d 635. In that case a wife left a life estate to her husband and on his death all her property to be ‘given to a worthy charity, selected by my executors.’ The executor became trustee under the will and appealed from an order awarding one-half of the proceeds of the wife's estate to collateral heirs and one-half to the administrator of the husband's estate. In reversing the decree the Supreme Court held that the collateral heirs could not challenge the bequest to charity and also that 33 Cal.2d at page 901, 206 P.2d at page 638 ‘Nor is the administratrix of the estate of Mrs. Bunn's husband in any better situation, for the right to contest a will on this ground has been held to be purely personal, to be narrowly restricted, and one which does not pass to the representative of a decedent as a part of his estate. (In re Webster's Estate, 178 Misc. 342, 33 N.Y.S.2d 862.)’

On the question of the right to contest on the other grounds mentioned in the Probate Code the authorities are not in harmony, one line of cases holding that the right is personal and must be exercised by an heir to the estate, another line holding that the right is a property right which may pass by assignment. Where a contest has been started by a party beneficially interested and that party dies the accepted rule, at least in this state, is that the right to contest survives and may be continued by his executor or administrator. In Estate of Baker, 170 Cal. 578, at page 586, 150 P. 989, 992, our Supreme Court said: ‘The contest of a will therefore goes to establish upon the part of the contestant that his right to property has been violated. It is in all strictness such a right as the Civil Code declares upon in section 954 in the following language:

“A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office.'

‘Such than was the right which this contestant was seeking to enforce and establish at the time of her death. What are the legal consequences of that death? The question is answered by section 385 of the Code of Civil Procedure:

“An action or proceeding does not abate by the death, or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In the case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest.”

It should be noted that the Baker case involved the question of the survival of the right to continue a contest of a will commenced before the death of the heir whose right of action was held to have been assignable. Where, however, the party ‘interested’ has failed to assert his right to contest the will, the right of his heirs or representatives to initiate such a contest has not been determined by any case in this jurisdiction. It is on such question that the authorities differ and the confusion is the more complicated because many of the cases fail to note the difference. And this is true as to some of the text writers. Note 129 A.L.R. p. 324, where, in reviewing Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 135 A.L.R. 316, the writer stated: ‘In the majority of the cases where the question has arisen it has been held that on the death of one having a right to contest a will, the right of contest survives.’ The statement is too general, and anything said in the Estate of Baker touching the right to initiate a contest after death of the party interested is pure dictum.

On the question of the survival of the right of contest where the heir having the right died without having exercised it, the cases are in hopeless confusion. In general those cases treating the question of the survival of the right of action (as distinguished from a cause of action where the right to sue on the cause has been exercised) rest the decision on either of these two principles—the existence of the right ‘at the time the will was probated’, or the application of the doctrine of election—whether the party primarily interested in a contest of the will elected to take under the will or to seek to annul it by a contest.

On the first question the authorities are not in accord. Campbell v. St. Louis Union Trust Co., supra; Allen v. Pugh, 206 Ala. 10, 89 So. 470; Cain v. Burger, 219 Ala. 10, 121 So. 17; Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N.E. 185; Ligon v. Hawkes, 110 Tenn. 514, 75 S.W. 1072; In re Hart's Estate, 105 Misc. 290, 172 N.Y.S. 807; 68 C.J. p. 932; 57 Am.Jur. p. 557. In Cain v. Burger, supra, the Alabama court said 121 So. at page 19, the right of contest ‘[n]ot being a property right, but one passing no beneficial interest by descent, it logically follows the personal representative has no cause of action as trustee for the same beneficiaries.’ If we were to follow these authorities we would have to conclude that, since the collateral heirs of Mrs. Field had no interest in the estate of deceased at the time of the probate of the will they were not parties interested entitled to contest such will. And, as we have said, there is no case in this state holding to the contrary.

The contrary rule is found in the following cases in which the person directly interested had failed to start a contest and where his representative or heirs were held entitled to do it after his death. In Dickson v. Dickson, Tex.Com.App., 5 S.W.2d 744 it is expressly held that every person who acquires an interest during the period provided by statute for the contest is entitled to contest the will. The Texas statute is similar to ours. To the same effect is In re Morrow's Will, 41 N.M. 723, 73 P.2d 1360. Chilcote v. Hoffman, 97 Ohio St. 98, 119 N.E. 364, L.R.A.1918D, 575, reasons that when there is a question of survival it does not make any difference whether the action has been instituted or not. When the action instituted does not lapse also the right itself without prior action must survive. In Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N.E. 177, it is argued in detail that a right to contest is a cause of action which survives although no court action had been instituted. In this case as in ours the person directly interested who died was insane from his inheritance to his death but the decision is not based on this fact.

In re Siebs' Estate, 70 Wash. 374, 126 P. 912 is a case like ours and there the insanity of the direct heir which prevented him from instituting the contest is mentioned as a ground for considering his heirs as persons interested in the original will. Considering the cases cited on both sides, it can hardly be said that there is a weight of authority one way or the other. We must then choose what we think is the best and fairest system.

Contrary to the contention of appellant there is no confusion here between the right of election by the widow to contest the will and her right to insist upon her community share or dower. Primarily it should be borne in mind that since the case comes up on demurrer there is no evidence showing whether the property was the separate property of the husband or whether it was community property. If the latter she would have the right to insist upon her community share at anytime before probate. But if she sought the other half of the community she could do so only by a contest of the will. Such would also be the case if the property were the separate property of the husband. Manifestly, if she were in full possession of her mental faculties she might elect to accept the life estate in the whole property rather than title to one-half of the separate property under sections 221 and 223 of the Probate Code.

The cited cases on this question come from non-community property states, in many of which the right of dower obtains. Uniformly these cases hold that the right of the widow to accept or renounce the provisions of a will is a personal privilege which must be exercised by her alone. A case directly in point is Moorman v. Louisville Trust Co., 181 Ky. 566, 205 S.W. 564, where it was held that acceptance by the guardian of a minor of the support provisions in the will did not preclude the minor from electing to contest the will in toto after she had obtained her majority. What is stated to be the majority rule in such cases is clearly put in 57 Am.Jur. p. 1040, as follows:

‘It is generally agreed, the question having apparently arisen only in connection with elections by a surviving spouse for or against the will of a deceased spouse, that the right of a beneficiary to elect to accept or renounce the provisions of a will is a personal privilege which must be exercised by him during his lifetime, and may not, after his death, be undertaken by his personal representative even if the beneficiary was suffering under some legal disability, such as insanity, between the time of the testator's death and that of his own.’ Flynn v. McDermott, 183 N.Y. 62, 75 N.E. 931, 2 L.R.A.,N.S., 959, held directly that the right of the widow to take against the provisions of her husband's will was personal and did not pass to her legal representatives. A more direct statement of the rule is found in Vanderlinde v. Bankers' Trust Co. of Muskegon, 270 Mich. 599, 259 N.W. 337, at page 339, where, after referring to the right of the surviving wife to elect to take under her husband's will, or to have dower, or to take her share as of an intestate estate, the court said: ‘The right of election is personal to the wife and is not assignable by her. In re Service's Estate, 155 Mich. 179, 118 N.W. 948. On her death it does not pass to her representatives or heirs. 69 C.J. 1108. Where a wife is insane or incompetent, she does not lose the right of election, but it may remain in abeyance until her restoration to competency. During her incompetency, election cannot be made by her guardian alone, but may be made by him only upon authority of the court having charge of her. In re Estate of Andrews, 92 Mich. 449, 52 N.W. 743, 17 L.R.A. 296. Nor does the right of election pass to the representatives or heirs of the wife on her death, although she was insane from the time election first could have been made to the time she died. Nordquist's Estate v. Sahlbom, 114 Minn. 329, 131 N.W. 323; Harding's Adm'r v. Harding's Ex'r, 140 Ky. 277, 130 S.W. 1098, Ann.Cas.1912B, 526; Sippel v. Wolff, 333 Ill. 284, 164 N.E. 678; [In re] Arnold's Estate, 249 Pa. 348, 94 A. 1076; 69 C.J. 1108, 1109; 74 A.L.R. 462, note.’

Appellant relies on Estate of Baker, 170 Cal. 578, 150 P. 989, and Estate of Johnson, 31 Cal.App.2d 251, 87 P.2d 900, 903. The cases are clearly distinguishable. In the Baker case an heir had commenced proceedings for the contest of a will and had died before the contest was heard. The court held that the contest when filed became a chose in action which was a part of the heir's estate. As an asset of the estate it was held that the administrator could continue the contest.

Estate of Johnston requires some explanation. At the close of the opinion we stated: ‘The appellant was the natural heir of Ira Spangler and as such was a proper party to contest this will * * *’. An examination of the record in that case discloses that appellant had not contested ‘as the natural heir’ of Ira Spangler, but that she sued as his guardian, Mr. Spangler then being alive but adjudged incompetent. The point was not raised on that appeal but it must have been assumed that the guardian had obtained permission of the court having jurisdiction of the guardianship to prosecute the contest. On that basis the Johnston case is in accord with the authorities heretofore cited holding that a guardian of an insane person may make the election to contest when authorized to do so by the court in which the guardian estate is pending.

The difference between the two cases is this—in the Johnston case the natural heir was incompetent and his guardian made the election and filed the contest ‘as guardian’; here the incompetent heir was deceased without having made an election and her administratrix filed the contest ‘as administratrix.’

It would appear from the foregoing that the rule of those cases from jurisdictions outside of California is that the right of a widow to contest her husband's will, to move to take her statutory share notwithstanding the will, or to accept the will as written is a right personal to the widow and must be exercised by her. However, the indequity of such a rule in a case like the present, where the widow was incompetent is clearly shown in Mead v. Phillips, 77 U.S.App.D.C. 365, 135 F.2d 819, 147 A.L.R. 322, where, on closely related facts, the circuit court held that such conclusion was wholly inequitable and that a court of equity, after the death of the incompetent widow, should be permitted to make the election for her. The court there said 135 F.2d at pages 830, 831; ‘In the case of a competent widow, it is fair to assume that she has balanced all considerations which may affect her and her heirs, and that failure to renounce constitutes a deliberate choice. In the case of an incompetent widow we know the contrary is true. In the former case, it may be fair to limit the exercise of the power to the lifetime of the widow. In the latter case it would be, not only unfair, but, an inducement to persons with interests adverse to the widow and her heirs to exercise undue influence upon the husband, secure appointment as her trustee, and then wait for her death to gather in the spoils.’

The inequities of the prevailing rule which are so clearly pointed out in Mead v. Phillips impress us here particularly since the complaint alleges that both the testator and his widow were incompetent. Under such circumstances the heirs of both should be given their day in court to protect their interests in the estate. On that basis we are more inclined to follow those cases holding that an heir of the deceased ‘party interested’ may contest notwithstanding the failure of such party to elect to contest in his life time.

The order sustaining the demurrer is reversed.

The appeal from the order denying leave to amend is dismissed.

I concur. There is no question of election in this case and the discussion in the main opinion of cases involving the doctrine of election only serves to complicate a simple question: Does the right to contest a will survive the death of the person initially possessing that right? The reasoning of the court in Estate of Baker, 170 Cal. 578, 150 P. 989 compels an affirmative answer.

It is true that in the Baker case the heir commenced the contest before her death, but the survival of the right of contest was not put by the supreme court on that narrow ground.

I quote from Estate of Baker, supra, 170 Cal. at page 586, 150 P. at page 992: ‘While the mere expectancy of an heir is not usually regarded as property, the moment the ancestor has died, that expectancy is changed into a vested interest in property. It becomes thus vested by virtue of the death. If, then, those rights are destroyed or impaired by an instrument which, though in form a will, is not for any reason recognized by the law a valid instrument, clearly the heir is being stripped of his vested rights to property by a paper writing as iniquitous [in its effect] as though it were forged as indeed it may be.

‘The contest of a will therefore goes to establish upon the part of the contestant that his right to property has been violated. It is in all strictness such a right as the Civil Code declares upon in section 954 in the following language:

“A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office.”

The court could not have said more clearly that the right to contest a will is a property right which survives the death of the heir.

NOURSE, Presiding Justice.

SCHOTTKY, Justice pro tem., concurs.

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