IN RE: the ESTATE of Maude A. STICKELBAUT

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

IN RE: the ESTATE of Maude A. STICKELBAUT, Deceased. Leona S. HALL, Contestant and Appellant, v. Herbert Ralph WATERS, Petitioner and Respondent.*

Civ. 24236.

Decided: December 18, 1959

Colman & Rotunno, M. Robert Colman, Los Angeles, for appellant. Blek & Wilcox, Inglewood, for respondent.

Appeal from order admitting will of Maude A. Stickelbaut to probate, granting to her son, Herbert Ralph Waters, letters of administration with-will-annexed and denying petition of Leona S. Hall for issuance of such letters to her.

Mrs. Stickelbaut left surviving her a son, Herbert Ralph Waters, a daughter, Leona DeLina, and two children of a deceased daughter, namely, Leona S. Hall (also known as Leona Margaret Skilliter) and Richard Skilliter. Counsel agree that the only pertinent portions of decedent's will (a joint testament of herself and her husband) are the following: ‘We hereby direct that in the event we should both die at or about the same time, then and in that event our entire rights, title, and interest in and to, any and all property of which we may die possessed shall become the property of our Grandaughter—Leona Margaret Skilliter, absolute. Same to be held in trust for her benefit when she becomes of the age of twenty-five years. Louis C. Page, Jr., to be the Trustee for her, and all profits from the estate to be used for her sole benefit until the end of this said trust’; ‘Any other legal claimants shall have One Dollar each only.’

The only issues discussed upon this appeal are (1) whether respondent Waters is a pretermitted child of decedent, and (2) whether a pretermitted child is ‘entitled to succeed to the estate or some portion thereof’ within the purview of Probate Code, § 422, which says: ‘* * * the relatives of the decedent being entitled to priority only when they are entitled to succeed to the estate or some portion thereof.’ For the reasons hereinafter stated we have concluded that respondent is not a pretermitted child and that he is entitled to succeed to a portion of the estate (one dollar) under the terms of the will.

Section 90, Probate Code, covers the subject of pretermission. It says: ‘When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator's property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.’ It is conceded that respondent has not been provided for by any settlement and has not received any advancement from testatrix.

Counsel debate the question of whether the sentence ‘[a]ny other legal claimants shall have One Dollar each only’ shows an unintentional failure to provide for respondent and thus leaves him in the status of a pretermitted heir. Curiously enough, counsel for both sides argue for such a result, which would leave respondent without priority over appellant grandchild under Probate Code, § 422. A pretermitted child takes against the will, not under it. In re Estate of Philippi, 71 Cal.App.2d 127, 133, 161 P.2d 1006. “Now it is settled law that a pretermitted heir seeking his interest under this section of the code is not a contestant and does not contest the will. His rights vest absolutely upon the death of the testator and, so far as his particular interest is concerned, there is no will. In re Estate of Sankey, 199 Cal. 391, 405, 249 P. 517.” In re Estate of Cochran, 116 Cal.App.2d 98, 101, 253 P.2d 41, 43.

The cases have construed the phrase ‘entitled to succeed to the estate or some portion thereof’ to mean a right to take under the will in case of testacy or pursuant to the laws of succession in case of intestacy,—in the instant case under the will. Speaking of § 1365, Code of Civil Procedure (predecessor of Probate Code, § 422), In re Estate of Crites, 155 Cal. 392, 394, 101 P. 316, 137, says: ‘Applying this principle to a will as it must be applied, since, if it be designed, as has been said, for the conservation of estates, it is as important in the case of testacy as intestacy, the rule would deny the right of letters of administration with the will annexed to one who, though an heir at law, did not take under the will.’ In re Estate of Cook, 173 Cal. 465, 471, 160 P. 553, 556: ‘[U]nder the terms of said section 1365, those only are entitled to letters who in case of intestacy are entitled to succeed to the personal estate of the deceased or some portion thereof, and who in case of testacy take by bequest some portion of that personal estate.’ See, also, In re Estate of Winbigler, 166 Cal. 434, 435, 137 P. 1; In re Estate of Sayers, 203 Cal. 753, 756, 265 P. 924; In re Estate of Jacobs, 100 Cal.App.2d 452, 453, 459, 223 P.2d 898.

It is said in In re Estate of Schwartz, 79 Cal.App.2d 301, 307, 179 P.2d 863, 867: ‘We think it clear that what the lawmakers meant when they used the word ‘succeed’ in section 422 of the Probate Code was persons who take property by operation of law—by descent—by succession.' This is not in line with the current of authority, has not been cited on this point except in In re Estate of Jacobs, supra, 100 Cal.App.2d 452, 458, 223 P.2d 898, 902, which says: ‘Subdivision 6 of section 422 was not involved, nor was the court concerned with the effect of the phrase ‘entitled to share in the estate.’ Language, used arguendo that would appear to support appellant's position, was obiter dictum and not in accord with the decisions of the Supreme Court to which we have referred.' It seems clear that in the event of a valid will one who would take only by succession has no legal interest in the estate. By parity of reasoning, one who takes as a pretermitted heir does not meet the specification of § 422, Probate Code, above quoted.

The agreement of counsel that respondent is a pretermitted heir does not preclude our independent examination of the question in order to dispose of the appeal upon its merits. ‘This court, of course, is not bound to accept concessions of parties as establishing the law applicable to a case. (Bradley v. Clark, 1901, 133 Cal. 196, 209–210, 65 P. 395; Berniker v. Berniker, 1947, 30 Cal.2d 439, 449, 182 P.2d 557.)’ Desny v. Wilder, 46 Cal.2d 715, 729, 299 P.2d 257, 263. See, also, Panopulos v. Maderis, 47 Cal.2d 337, 340–341, 303 P.2d 738.

We are not confronted with parol evidence in this case. The statute, § 90, Probate Code, and the cases require that the testatrix' intention be deduced from the face of the will (In re Estate of Fernstrom, 157 Cal.App.2d 380, 383, 321 P.2d 25; In re Estate of Trickett, 197 Cal. 20, 22–23, 239 P. 406), except to the extent that extrinsic evidence may be necessary to apply that instrument to the facts upon which it must operate (see, Paley v. Superior Court, 137 Cal.App.2d 450, 456, 290 P.2d 617).

The fundamental question is whether the terms of the testament under consideration do or do not imply an intention to disinherit a child or children of a deceased child, or merely to limit such person or persons to a nominal amount. ‘Any other legal claimants shall have One Dollar each only’,—that is the provision which we must construe.

Testatrix left surviving her two children and two grandchildren, issue of a deceased daughter. She is presumed to have been cognizant of the laws of succession applying to her situation (In re Estate of Lindsay, 176 Cal. 238, 240, 168 P. 113; In re Estate of Talmage, 114 Cal.App.2d 18, 21, 249 P.2d 345). The will provides for one granddaughter and does not mention the grandson or the two surviving children of testatrix. Of whom would one learned in the law, or one speaking a layman's language, think first as ‘a legal claimant’? Upon the factual situation known to testatrix it seems that no one other than the omitted children and grandchild would fit the language of her will. She does not speak in terms of disinheritance, but of nominal gifts. Upon principle it seems clear that her son Herbert, the respondent, was not disinherited nor was he omitted from his mother's disposition of her property, but was intentionally given a nominal amount,—is not a pretermitted heir.

While there is considerable divergence in the decided cases in this state, the leading one is Van Strien v. Jones, 46 Cal.2d 705, 299 P.2d 1, which was an action to establish a constructive trust in favor of one claiming to be a pretermitted heir. At page 707 of 46 Cal.2d, at page 2 of 299 P.2d the court said: ‘It is well settled that where in a will a testator's child is intentionally omitted or given $1 or any other sum, section 90 of the Probate Code is satisfied although the child is not mentioned by name. In re Estate of Minear, 180 Cal. 239, 180 P. 535; In re Estate of Lindsay, 176 Cal. 238, 168 P. 113; In re Estate of Hassell, 168 Cal. 287, 142 P. 838; In re Estate of Doell, 113 Cal.App.2d 37, 247 P.2d 580. The use of such terms as ‘relatives' and ‘children’ have been held sufficient to designate heirs who might otherwise be pretermitted, In re Estate of Trickett, 197 Cal. 20, 239 P. 406; Rhoton v. Blevin, 99 Cal. 645, 34 P. 513; cf. In re Estate of Utz, 43 Cal. 200, but such generalities as “anyone who may contest this will” and ‘any other person’ do not include heirs otherwise pretermitted, In re Estate of Price, 56 Cal.App.2d 335, 132 P.2d 485; In re Estate of Cochran, 116 Cal.App.2d 98, 253 P.2d 41.' The first sentence of this quotation seems to fit our case exactly. The will under consideration in Van Strien provided: “If any person who is, or claims under or through, a devisee, legatee, or beneficiary under this Will, or any person who if I died intestate would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly contest this Will * * * then I hereby bequeath to each such person the sum of One Dollar ($1.00) only * * *.” 46 Cal.2d at page 706, 299 P.2d at page 2. The opinion: ‘In the present case the will, in addition to providing generally for ‘any person’ who claims under the will, also provides that if ‘any person who if I died intestate would be entitled to share in my estate’ should contest the will he bequeaths to such person the sum of $1. In re Estate of Kurtz, 190 Cal. 146, 210 P. 959, 960, the testator provided: “I * * * disinherit each and all persons whatsoever claiming to be, and who may be, my heirs at law * * * and if any of such parties or such heirs, or any person whomsoever who, if I died intestate, would be entitled to any part of my estate * * * seek or establish or assert any claim to my estate * * * I hereby give and bequeath to said person or persons the sum of one ($1.00) dollar * * *.” The portions of that will which have been emphasized are almost identical with the clause in the will in the present case. In In re Estate of Dixon, 28 Cal.App.2d 598, 83 P.2d 98, 99, the will also ‘contained a clause almost identical with the will of the decedent in’ the Kurtz case. See also In re Estate of Lindsay, supra, 176 Cal. 238, 168 P. 113; In re Estate of Hassell, supra, 168 Cal. 287, 142 P. 838; In re Estate of Lombard, 16 Cal.App.2d 526, 60 P.2d 1000. In all of the foregoing cases it was held that children or grandchildren of the testator were not pretermitted where the wills referred to them only as ‘heirs not herein mentioned,’ or ‘persons claiming to be heirs,’ or as in the present case, ‘persons who if I died intestate would be entitled to any part of my estate.’' 46 Cal.2d at page 707, 299 P.2d at page 3. ‘The wills in the Kurtz and other cases herein cited to like effect make definite and specific reference to persons who, by the laws of succession, would be entitled to participate in the testator's estate had he died intestate, or had he died testate but failed to mention them in his will or otherwise provide for them. Those cases support the conclusion of the trial court in sustaining the demurrer.’ 46 Cal.2d at page 708, 299 P.2d at page 3.

In In re Estate of Fernstrom, supra, 157 Cal.App.2d 380, 321 P.2d 25, the will said: “I have, except as otherwise provided in this Will, intentionally and with full knowledge omitted to provide for my heirs who may be living at the time of my death.” 157 Cal.App.2d at page 382, 321 P.2d at page 26. This court: ‘In a number of California cases it has been held that nominal testamentary provisions for ‘heirs' were effective to preclude children from taking as pretermitted heirs, even though such children were not named.’ 157 Cal.App.2d at page 383, 321 P.2d at page 27. ‘Appellant urges that the will involved in the instant case shows that the testator did not have her in mind at the time he executed his will. Indeed, appellant's preferred hypothesis is that the testator never knew of her existence. This contention is unavailing because the rule is settled that when a testator has declared in his will that he intends to omit all heirs not therein provided for, such declared intention and purpose will be given effect and it is immaterial whether the testator knew of the existence of the particular claimant or whether the particular claimant was in the testator's mind.’ 157 Cal.App.2d at page 385, 321 P.2d at page 28.

In re Estate of Bridler, 165 Cal.App.2d 486, 331 P.2d 1028, deals with the revocation of a will through subsequent marriage. This court said, 165 Cal.App.2d at page 488, 331 P.2d at page 1030: ‘The considerations of policy underlying sections 70 and 90 of the Probate Code are essentially the same, and it is well settled that a nominal bequest satisfies the requirements of section 90 so as to preclude a child from taking as a pretermitted heir. Van Strien v. Jones, 46 Cal.2d 705, 707, 299 P.2d 1; In re Estate of Fernstrom, 157 Cal.App.2d 380, 383, 321 P.2d 25. In Estate of Kurtz, 190 Cal. 146, 210 P. 959, the court was called upon to apply the statutory predecessor to section 70 and it was held that a surviving wife was ‘provided for’ by a nominal bequest of $1 in a disinheriting clause. See In re Estate of Axcelrod, supra, 23 Cal.2d 761, 764–766, 147 P.2d 1.'

In re Estate of Minear, 180 Cal. 239, 240, 180 P. 535: ‘The material portions of the will upon this point are two: First, ‘I am a single man, I have never been married,’ and, second, ‘Now if there should be any other or others than the ones that I have named in my will above that claim to be my lawful heirs and can and do prove that they are to each of them I will $5.00 five dollars if there should be any such.’ * * * The true construction of the will we believe to be that the testator intended to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise.'

Other cases involving language which refers to ‘heirs' generally and makes only nominal bequests are to the same effect: In re Estate of Lindsay, supra, 176 Cal. 238, 239, 168 P. 113; In re Estate of Brown, 164 Cal.App.2d 160, 164, 330 P.2d 232; In re Estate of Hassell, 168 Cal. 287, 288, 142 P. 838; In re Estate of Doell, 113 Cal.App.2d 37, 38, 39, 347 P.2d 580; In re Estate of Kurtz, 190 Cal. 146, 148–149, 210 P. 959; In re Estate of Dixon, 28 Cal.App.2d 598, 600, 83 P.2d 98; In re Estate of Brannon, 111 Cal.App. 38, 41, 295 P. 83; In re Estate of Talmage, supra, 114 Cal.App.2d 18, 21, 249 P.2d 345; In re Estate of Cochems, 112 Cal.App.2d 634, 637, 247 P.2d 131.

Cases applying language such as ‘to anyone who may contest this will’ or ‘any other person or persons' (e. g., In re Estate of Price, 56 Cal.App.2d 335, 132 P.2d 485, 487; In re Estate of Cochran, supra, 116 Cal.App.2d 98, 253 P.2d 41), are not pertinent here. They are characterized in Van Strien v. Jones, supra, 46 Cal.2d 705, at page 707, 299 P.2d 1 at page 3, as presenting ‘such generalities' as ‘do not include heirs otherwise pretermitted.’ Concerning In re Estate of Price, supra, the opinion in In re Estate of Doell, supra, 113 Cal.App.2d at page 39, 247 P.2d at page 581, says: ‘The court held in that case that the term ‘any other person or persons' was not equivalent to ‘any other heir or heirs,’ and consequently too general to designate a grandson. On the other hand, in the will in this case the testatrix expressly states that she has intentionally, and with full knowledge, omitted to provide for her heirs. The term, ‘heirs,’ when so used is specific enough, according to the cases heretofore cited, not only to designate the children, but also the children of any deceased child of the testatrix.'

Likewise, cases such as In re Estate of Frinchaboy, 108 Cal.App.2d 235, 238 P.2d 592, which was decided before Van Strien, supra, and holds that “I hereby direct that the sum of One Dollar be given to my daughter, should she claim any interest in my estate” 108 Cal.App.2d at page 236, 238 P.2d at page 593, constitutes a disinheritance rather than a bequest clause, are not persuasive here. It has not been cited except in In re Estate of Cochran, supra, 116 Cal.App.2d 98, 100, 253 P.2d 41, wherein it is distinguished. In the later case of In re Estate of Carroll, 138 Cal.App.2d 363, 366, 291 P.2d 976, 978, the same division of the same court says: ‘[T]he disinheritance by the mere bequest of a nominal sum is not a complete disinheritance under all circumstances. * * * We have been unable to find, nor have we been cited to, any case holding that the mere bequest of a nominal sum constitutes an intent to disinherit under other circumstances than those contemplated in the will. The intent to disinherit must appear on the face of the will by words indicating such ‘intent directly, or by implication equally as strong.’' More convincing at bar is Estate of Minear, quoted supra.

Nor do cases which hold that the clause under consideration is one of disinheritance rather than one of bequest (e. g., In re Estate of Price, supra, 56 Cal.App.2d 335, 132 P.2d 485; In re Estate of Cochran, supra, 116 Cal.App.2d 98, 253 P.2d 41), control here. Primarily this is true because the instant will does not point toward disinheritance as a result of contesting the will or upon any other ground. In any and all events ‘[a]ny other legal claimants shall have One Dollar each only.’ It seems plain to us that respondent Waters is not a pretermitted heir.

From the foregoing it follows that respondent, as an heir who has been intentionally left one dollar (not omitted from the will) does not have the status of a pretermitted heir; he therefore takes under the will and being ‘entitled to succeed to the estate or some portion thereof’ within the purview of § 422, Probate Code, has priority over a grandchild.

The order here on appeal is affirmed.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.