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IN RE: the ESTATE of Jack KASEROFF

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Court of Appeal, Second District, Division 4, California.

IN RE: the ESTATE of Jack KASEROFF, also known as Jack M. Kaseroff, also known as Yank Kaseroff, Deceased. Marion E. KYSAR, Appellant, v. James D. PETTERSON, Respondent.

Civ. 47600.

Decided: July 14, 1976

Cate & Will, and Clifford C. Cate, Glendale, for appellant. Eagleton & Petterson, and Kelsey Petterson, Bellflower, for respondent.

This is an appeal from an order granting letters of administration-with-the-will annexed. Appellant is the nominee of two children of the testator; respondent is the nominee of testator's wife.1 Testator left a holographic will, leaving the bulk of his small estate to his children and relatives; he left the sum of $1.00 to his wife, explaining in some detail that she had left him and that they had settled all community property rights.2

We agree with appellant that the case before us requires us to consider, and to read together, two sections of the Probate Code. Section 409 of that code reads as follows, in pertinent part:

‘. . . Persons are entitled to appointment as administrators with the will annexed in the same order of priority as in the appointment of administrators, except that, one who takes under the will has priority over one who does not, and need not be entitled to succeed to the estate or some portion thereof under the law of succession. Administration may be granted to one or more competent persons who are not otherwise entitled to appointment as a matter of priority, upon the written request filed with the court by a resident of the United States who takes more than 50 percent of the value of the estate under the will.’

Section 422 of that code provides as follows:

‘(a) Administration of the estate of a person dying intestate must be granted to one or more of the following persons, who are entitled to letters in the following order:

‘(1) The surviving spouse, or some competent person whom he or she may request to have appointed.

‘(2) The children.

‘(3) The grandchildren.

‘(4) The parents.

‘(5) The brothers and sisters.

‘(6) The next of kin entitled to share in the estate.

‘(7) The relatives of a previously deceased spouse, when such relatives are entitled to succeed to some portion of the estate.

‘(8) The public administrator.

‘(9) The creditors.

‘(10) Any person legally competent.

‘(b) A relative of the decedent who is entitled to priority under subdivision (a) is entitled to priority only if either of the following facts exist:

‘(1) The relative is entitled to succeed to all or part of the estate.

‘(2) The relative is a parent, grandparent, child, or grandchild of the decedent and either takes under the will of, or is entitled to succeed to all or part of the estate of, another deceased person who is entitled to succeed to all or part of the estate of the decedent.‘

We read those two sections as requiring the probate court to look first to section 422 and appoint in accordance with the priority therein set forth (a nominee having the same priority as his nominator), except that the probate court shall ignore any of the persons or classes listed in section 422 if they do not ‘take under the will.’

The question before us, then, resolves to this: Is a surviving wife, who is left only $1.00 under a will, a person entitled to ‘take’ under that will?

We are not cited to, not have we found, any cases construing the present form of section 409 in connection with section 422. In Estate of Stickelbaut (1960), 54 Cal.2d 390, 6 Cal.Rptr. 7, 353 P.2d 719, the court was concerned with section 409 as it then stood. But, at that time, section 409 merely provided that ‘[p]ersons are entitled to appointment as administrators with the will annexed in the same order of priority as in the appointment of administrators.’ Under that provision, the court, construing section 422, held that a pretermitted heir (who takes adversely to the will rather than under it) was entitled to appointment over a legatee under the will, since he was a ‘person entitled to succeed’ to the estate. That case is of no assistance to us in a case where the Legislature, by later amendment, has expressly made a right to take under the will a condition of appointment. In Estate of Trissel (1962), 208 Cal.App.2d 188, 25 Cal.Rptr. 205, the court again had before it a case involving section 409 in its earlier form. The court in that case held that a son, who had forfeited his right to take under the will by contesting it, was not a person entitled to succeed to the estate aid, thus, not entitled to appointment.3 The case of Estate of Crites (1909), 155 Cal. 392, 101 P. 316, relied on by appellant, is in the same category. There the widow had not only expressly been disinherited, but she had surrendered her statutory right of succession by articles of separation. Again, in Estate of Winbigler (1913), 166 Cal. 434, 137 P. 1, the will, as construed by the court, had effectively removed a niece as a person entitled to take either under the will or by right of succession.

Since the cases above referred to deal only with situations in which an applicant for appointment neither took under the will nor was entitled to succeed to any part of the estate, we are left with the question as above stated: Should we construe section 409, as it now reads, as excluding from appointment a legatee who takes only a nominal amount and who the testator clearly had desired to disinherit?4 In both Estate of Crites, supra, (1909), 155 Cal. 392, at pages 393–394, 101 P. 316, and in Estate of Trissel, supra, (1962), 208 Cal.App.2d 188, 25 Cal.Rptr. 205, there is language setting forth a policy underlying the statutory rules. That policy was summarized by Mr. Justice Files, speaking for the court in Estate of Trissel, as follows (at p. 193, 25 Cal.Rptr. at p. 208):

‘Underlying the statutory scheme, the policy of the law is to place administration in the hands of the persons most likely to convert the property to the advantage of those beneficially interested.’ Appellant relies on that expression of policy, pointing out that respondent, who will take no more than $1.00, has less interest in conserving the estate than appellant, who is the nominee of daughters of the testator who are both legatees and devisees under the will. Although we recognize the force of that argument, we do not feel that we can disregard the fact that the Legislature has not, in the circumstances before us, seen fit to make the right to appointment dependent on the size of the testamentary disposition. In Estate of Trissel, supra, the son, denied appointment by reason of his will contest, had been left only $500 out of an estate of $87,684.40, yet the court did not regard the smallness of the legacy to bar the son had he not disqualified himself. That the Legislature was not unaware of the problems inherent in cases where there is a contest between major and minor legatees or devisees is apparent from the last sentence of section 409, expressly giving a priority to a person who takes more than 50% of the estate. In the face of that one express statement, we cannot hold that a probate court is entitled or compelled to engage in any other quantitative weighing between contestants for appointment.5

The order appealed from is affirmed.

I dissent.

The sole issue in this case is that of interpreting a provision in Probate Code section 409. This section governs priorities in the appointment of persons as administrators with the will annexed, and provides that persons are entitled to appointment in the same order of priority as in the appointment of administrators. But this rule of priority has an exception that is in issue here. The exception stated in section 409 is that ‘one who takes under the will has priority over one who does not.’

The question at issue in the instant case is whether a widow who has been left the sum of one dollar in a will is a person who ‘takes under the will’ so as to preclude preference in the appointment as administrator with will annexed to decedent's child, a beneficiary under the will who receives a substantial bequest. The majority interprets the exception provision in Probate Code section 409 as including a one-dollar beneficiary as a ‘taker’ under the will.

In my view, decedent's widow—the one-dollar beneficiary in the case at bench—is not ‘one who takes under the will’ within the meaning of Probate Code section 409. I construe section 409 as mandating that decedent's child, who clearly is a taker under decedent's will, is entitled to priority in the appointment as administrator with the will annexed over the widow—the one-dollar beneficiary—a nontaker under decedent's will.

The majority bases its construction of Probate Code section 409 on the fact that the Legislature did not make the right to appointment in section 409 dependent on the size of the testamentary disposition. Under this interpretation of the statute, a bequest of one cent to a beneficiary would make such beneficiary a taker under a decedent's will. The majority's interpretation of Probate Code section 409 runs counter to all recognized and accepted principles of statutory construction. It is purely a literal and technical construction of the words used in the statute.

One significant principle of statutory construction is that a statute should be given a reasonable and common sense interpretation in accordance with the apparent purpose and intention of the Legislature (Rose v. State of California (1942) 19 Cal.2d 713, 123 P.2d 505; County of Alameda v. Kuchel (1948) 32 Cal.2d 193, 195 P.2d 17), and a statute's ‘apparent purpose will not be sacrificed to a literal construction.’ (Ivens v. Simon (1963) 212 Cal.App.2d 177, 181, 127 Cal.Rptr. 801, 805.) Instead, an interpretation which will effect such purpose should be the one adopted. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 335 P.2d 672.) The literal interpretation of Probate Code section 409, made by the majority opinion herein, also ignores the paramount principle of statutory construction that “[t]he provisions of the Constitution, or of a statute, should receive a practical, rather than a technical, construction [citation]; one leading to a wise policy rather than of ‘mischief or absurdity.”’ (City of El Monte v. City of Industry (1961) 188 Cal.App.2d 774, 782, 10 Cal.Rptr. 802, 807.)

The majority's construction of Probate Code section 409 also ignores a fundamental principle of probate law that in the interpretation of wills, the testator's intent becomes a consideration of quintessential importance. Since section 409 refers to ‘one who takes under the will,’ a decedent's intention with respect to whether he considers the language used in his will as words of bequest or words of disinheritance should play a part in interpreting the provisions of section 409. Since a gift of one dollar, in light of the language of decedent's will in the case at bench, is a clear indication of decedent's intent to disinherit his former wife, Probate Code section 409 should be construed in harmony with Probate Code section 101 requiring that effect be given to a testator's intent in construing his will.

That a testator's intent is of consequence is exemplified by the case of Estate of Winbigler (1913), 166 Cal. 434, 137 P. 1. In Winbigler, the question presented was whether a niece of the decedent was a ‘taker’ under his will so as to have preference in appointment as administratrix with the will annexed. The decedent's will made various bequests in dollar amounts to his heirs should his estate not be worth over $40,000.00 and provided: ‘To my Niece . . . I give Nothing.’ A subsequent provision stated: ‘Now if my Estate Shall be worth more than the above Sum then all heirs, Shall receive the larger amount.’ The estate was valued at $60,000.00. The neice claimed that, under the will, she was entitled to share in the excess of $20,000.00 over the $40,000.00 value and was eligible, therefore, as a ‘taker’ under the will to be appointed an administratrix with the will annexed.

The Winbigler conceded that if the will were to be construed literally, the niece would be included as a ‘taker’ under the word ‘heirs.’ But the court emphasized that the intent of the testator was paramount and that the court should look to the whole will to ascertain the intent of the testator. This intent, said the Winbigler court, was not to use the word ‘heirs' in the ordinary sense as meaning all those persons who would have succeeded to his property had he died intestate. Looking at the will as a whole, the court construed the will in accordance with the testator's intent—which was to exclude the niece ‘from all participation in his estate in any event. This appears to have been his first thought, and the one upon which he placed special emphasis.’ (Estate of Winbigler, supra, 166 Cal. 434, at p. 437, 137 P. 1, at p. 2.)

Probate Code sections 409 and 422 set forth a policy of priorities in determining the persons who should be eligible for appointment as administrators of intestate estates and testate estates where it is necessary to appoint an administrator with will annexed. There is general agreement on the policy underlying this statutory scheme of priorities. ‘Underlying the statutory scheme, the policy of the law is to place administration in the hands of the persons most likely to convert the property to the advantage of those beneficially interested.’ (Estate of Trissel (1962) 208 Cal.App.2d 188, 193, 25 Cal.Rptr. 205, 208.)

In Estate of Mullane (1967), 253 Cal.App.2d 441, 61 Cal.Rptr. 366, Probate Code section 409, as it now reads, was construed to favor in that case an appellant, a residuary legatee who, under Probate Code section 422, subsection (a)—came within category ‘(10) Any person legally competent’—over a respondent, the public administrator, who came within a higher category—category ‘(8) The public administrator.’ In so holding, the court stated: ‘Because appellant takes under the will and respondent does not, the exception gives appellant priority over respondent, notwithstanding the priorities established by section 422. The superior court should have appointed appellant and not respondent. [¶] Section 409's priorities, including the exception, follow natural and usual human desires. . . .’ (Estate of Mullane, supra, 253 Cal.App.2d 441 at p. 442, 61 Cal.Rptr. 366, at p. 367.)

There has been no waivering by the courts in adhering to the fundamental policy in construing the applicable sections of the Probate Code to effectuate this policy. “It has long been an elementary doctrine governing courts exercising probate jurisdiction that the right to the administration of the estate follows the property in the estate. [Citations.] The courts have deemed it their duty to place administration in the hands of the persons most likely to convert the property to the best advantage of those beneficially interested. That person is he who, because of his interest as distributee, is entitled, in whole or in part, to the residue after the claims of creditors have been satisfied. A sole legatee is a residuary legatee. [Citation.] Statutes prescribing priority of right to administration have for their purpose the effectuation of this policy. [Citations.]” (Estate of Mullane, supra, 253 Cal.App.2d 441, at pp. 442–443, 61 Cal.Rptr. 366, at p. 367–368.)

In Estate of Crites (1909), 155 Cal. 392, 101 P. 316, a decedent died testate. His will declared that all property was his separate property; that no provision was being made for his widow because suitable provision had already been made. The principal beneficiaries were three children by a former marriage. The trial court granted letters of administration with will annexed to the nominee of the widow in preference to one of the children, a beneficiary under the will. This was held to be reversible error. The majority considers this case as shedding no light on the problem presented in the case at bench because it dealt with the statute that used language making the right of intestate succession as an heir the key consideration to preferential treatment for appointment as an administrator in cases of intestacy. But the reasoning of Estate of Crites provides persuasive weight against the result reached by the majority in the instant case before us.

Estate of Crites pointed out, long before Estate of Mullane, that the principle involved in restricting the right of administration to the relatives entitled to succeed to some portion of a decedent's estate is grounded in the policy that administration of an estate should be committed to the beneficiaries of an estate. The Crites court concluded that this principle is equally applicable to qualification to administer the estate of a decedent disposed of by will. ‘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. The widow, upon the showing here made was not entitled so to take, and, such being the case, neither she nor her nominee was entitled to letters of administration under the will.’ (Estate of Crites, supra, 155 Cal. 392, at p. 394, 101 P. 316, at p. 317.) (Emphasis added.)

The majority recognizes the validity of the policy underlying the legislative scheme of priorities in estate administration, but seeks to nullify its importance in the case at bench because the widow nominated a nominee in her place. Therefore, concludes the majority, administration of the estate is not committed to the one-dollar widow who has no real interest or motive in whether the estate is administered properly for the benefit of those who are recipients of decedent's estate. But this reasoning of the majority is answered by the Crites court's holding that a nominee can have no greater rights than the nominator. (Estate of Crites, supra, 155 Cal. 392, 394, 101 P. 316.)

Any consideration of the policy underlying the limitations and preferences expressed in the provisions of Probate Code sections 409 and 422 supports, without question, a construction of those sections contrary to that reached by the majority. A testator's will that makes a bequest to a beneficiary of an insignificant amount indicates convincingly an intent to really disinherit the alleged beneficiary. Probate Code section 409 should be construed to preclude such a bequest from constituting a ‘taking’ under the will. An insignificant bequest such as one dollar is tantamount to no bequest at all, and Probate Code section 409 should be so interpreted to produce this result.

Such an interpretation of section 409 is supported by the reasoning advanced in Estate of Frinchaboy (1951), 108 Cal.App.2d 235, 238 P.2d 592. In Frinchaboy, a will provided: ‘I hereby direct that the sum of One Dollar be given to my daughter, should she claim any interest in my estate.’ If this language constituted a bequest by will to the daughter, she could not be deemed a pretermitted heir. The Frinchaboy court stated: ‘It is obvious, then, from the language of the will that she was intending, not to make a bequest, but to disinherit the daughter. If the daughter makes no claim, she gets nothing. If she does make a claim she gets practically nothing, merely the nominal sum of $1.00, and she gets that, not as a bequest, but as a token of disinheritance. While there are cases that hold that bequests of nominal sums to a predeceased child are sufficient to cause the application of anti-lapse statutes to their children, such an interpretation of those statutes is highly technical, unfair and unrealistic. It completely overlooks the fact that a bequest of only $1.00 to a child of the testatrix is never intended as a gift from the testatrix, but is merely another way of saying, ‘I leave nothing to my daughter.’' (Estate of Frinchaboy, supra, 108 Cal.App.2d 235, at p. 238, 238 P.2d 592, at p. 594.) (Emphasis added.)

The law is well settled that if a will provides that, in the event of a contest of the will by any devisee or legatee, such beneficiary loses his gift under the will and, thereafter, a beneficiary files a contest, he loses his gift under the will and he also loses the preference to be appointed an administrator with will annexed. (Estate of Trissel (1962) 208 Cal.App.2d 188, 25 Cal.Rptr. 205; Estate of Selb (1949) 93 Cal.App.2d 788, 210 P.2d 45.) But if a testator's will were to make a $5,000 bequest to a beneficiary with a provision that any person contesting the will shall receive one dollar in place of the original bequest, is there any rational basis for holding that such a provision does not indicate a testator's intent to disinherit such a beneficiary? It would seem that the one dollar provision in the event the beneficiary files a will contest should be considered as effective an intent to disinherit the beneficiary as in the case of a will providing that a contestant shall receive nothing under the will in the event of a contest.

It is my opinion that no logical distinction can be made between the two types of provisions contained in a will to effectuate a result of disinheritance in the event of a will contest. But under the majority's analysis, the beneficiary who loses $5,000 and is to receive one dollar because of his filing a contest to the will, would still be a ‘taker’ under the will and not precluded by Probate Code section 409 from being appointed an administrator with will annexed, while the beneficiary who loses $5,000 and receives nothing in its place, would be precluded from being appointed as an administrator with will annexed. Such a distinction produces an obviously absurd result.

The majority relies in part for its interpretation of Probate Code section 409 on the provision in section 409 that ‘[a]dministration may be granted to one or more competent persons who are not otherwise entitled to appointment as a matter of priority, upon the written request filed with the court by a resident of the United States who takes more than 50 percent of the value of the estate under the will.’ From this provision, the majority concludes that the Legislature did not otherwise make the right of appointment as administrator with will annexed dependent on the size of the testamentary disposition. This analysis of legislative intent is not at all persuasive. The question involved is not one of having priority of appointment of an administrator with will annexed dependent upon the size of a bequest under the will, but whether an insignificant bequest such as one dollar—which clearly shows an intent to disinherit—should be deemed no bequest at all in terms of a determination of whether a person ‘takes under the will.’

To bolster its position that, under Probate Code section 409, the size of a testamentary gift cannot be taken into account in determining eligibility for estate administration, irrespective of how insignificant such gift may be, the majority relies upon Estate of Trissel, in which a son who had been left $500 in the decedent's will, filed a will contest and thereby forfeited his right to this bequest because of the provisions of the will which required forfeiture of a bequest upon a beneficiary's filing a contest to the will. In Trissel, the court held that this forfeiture of the bequest resulted in forfeiture of the beneficiary's right to priority of administration under Probate Code section 422, even though he was a child of decedent. Thus, the Trissel court remarked: ‘Under this statute it is settled that a relative of the decedent, even though an heir at law, has no priority if the will effectively disinherits him. [Citations']’ (Estate of Trissel, supra, 208 Cal.App.2d 188, at p. 191, 25 Cal.Rptr. 205, at p. 207.) (Emphasis added.)

The Trissel court, however, does not discuss, and it was not required to discuss, whether the sum of $500 was a disinheritance under the circumstances. The Trissel court concluded that the son was disinherited because ‘[t]he will provides that if any beneficiary ‘shall in any manner contest or attack this Will,’ his share is revoked. William [the son] has brought himself within that provision even though he may hereafter withdraw his contest before trial.' (Estate of Trissel, supra, 208 Cal.App.2d 188, at p. 191, 25 Cal.Rptr. 205, at p. 207.)

But even though Estate of Trissel is not apposite to our problem of statutory construction, the analogy drawn by the majority is not well taken. The relationship between a bequest of $500 and an estate of $87,684.40 is not at all similar to the relationship between a one-dollar bequest out of an estate of $24,000. In the former case the relationship is 1 to 175 while in the latter the relationship is 1 to 24,000. Thus, a bequest of 500 may be held to be not an insignificant gift in view of an estate of $87,000 and, hence, not an effective disinheritance of the beneficiary. But a bequest of one dollar out of an estate of $24,000 is clearly an insignificant gift—an effective disinheritance of the alleged beneficiary.

It is my view that if a will makes a bequest of one dollar to an alleged beneficiary—as was done in the case at bench—‘the will effectively disinherits him’ (Estate of Trissel, supra, 208 Cal.App.2d 188, at p. 191, 25 Cal.Rptr. 205), so that the alleged beneficiary does not come within the exception of Probate Code section 409 that gives priority in appointment as administrator with the will annexed to ‘one who takes under the will . . . over one who does not.’

I would reverse the order appealed from with directions to the trial court to enter an order granting letters of administration with the will annexed to appellant as the nominee of two children of the testator.

FOOTNOTES

1.  Testator had secured an interlocutory decree of divorce from respondent's nominator, but no final decree had, or has, been entered.

2.  The portion of the will involving the wife reads as follows:‘Inez Peterson Kaseroff is to Receive One Dollar only ($1 no/100) Nothing Else. She left me and my House on Feb. 10, 1965 took all her Possessions and all her Furniture. I have paid her in cash for Her Share of the Carolina property Total amount paid in 3 years time $3000 no/100, Three Thousand Dollars. Jack Yank Kaseroff.‘I have a Receipt From Inez Peterson Kaseroff Stating Paid in Full to/date Paid in Providence Rhode Island July 1962.‘She Inez Peterson Kaseroff has no claim of any kind against any of the property.‘Mr. J. G. Robertson has all of the details concerning Inez. Do Not pay her anything. She Stole enough money from me during the time I was at Sea working.’We agree with the trial court that the emphasized words ‘Do Not pay her anything’ relate only to payment of any claimed community property interest and do not contradict the earlier express gift of $1.00.

3.  To the same effect: Estate of Selb (1949), 93 Cal.App.2d 788, 210 P.2d 45.

4.  Appellant argues that the testator, clearly not an educated man, labored under a popuular idea that what the law calls a pretermitted heir can be disinherited only by ‘cutting him off with a dollar.’ That may be so, but we must take the will as it was written.

5.  We point out that the estate before us is of the agreed value of $24,000 and that the order appointing respondent fixed his bond at that amount. And we cannot assume that respondent, a member of the Bar, will be negligent in performing his duties to the estate as a whole merely because his nominator may be disinterested in the details of administration.

KINGSLEY, Acting Presiding Justice.

DUNN, J., concurs.

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