MARY GUIDRY v. WILLARD ANTHONY (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Willard S. Anthony appeals from the trial court's order distributing cash from the trust created by decedents Andrew and Odessa Jackson.   We affirm.

FACTS AND PROCEEDINGS

In this appeal, Willard S. Anthony contends he is entitled to sale proceeds from real estate in Compton, California, that the Andrew Jackson and Odessa Cox Jackson Trust (the trust) once owned.   Apart from asserting the court misinterpreted trust documents, his opening brief, with barely three pages of argument, offers no coherent description or analysis of the court's error beyond claiming the court got it wrong.

Piecing together the record, we find Andrew and Odessa Jackson created a revocable living trust in 1999.   Among other property put into the trust, Andrew deeded three pieces of real estate he owned, one of which was on Grape Street in Compton.   The trust provided upon the deaths of both Andrew and Odessa for equal one-thirds division of trust property to Andrew's only child (James Jackson), Odessa's friend (Stella Edwards) and, Odessa's cousin (Lucinda Derry).

In July 2000, Andrew and Odessa amended their trust.   They removed son James and cousin Derry as trust beneficiaries, and made appellant a beneficiary with Edwards.   The amendment also named, in order, Edwards and then appellant as successor trustees.   The amendment provided upon the deaths of Andrew and Odessa for the distribution of all personal property to Edwards.   The amendment also stated appellant “shall be given 100% interest in the following real property” and identified the three properties Andrew had placed in the trust.   Andrew died in December 2000.

In September 2001, Odessa amended the trust.   Her amendment stated that upon her death as the surviving trustor, the balance of the trust estate was to be distributed equally between Andrew's son James and respondent Mary Guidry, the daughter of Odessa's cousin Lucinda Derry.   Odessa also removed Edwards and appellant as successor trustees and named respondents Guidry and Barbara Brunner as co-trustees.   From the time respondents Guidry and Brunner became trustees until Odessa's death in November 2004, they managed the trust's income and principal for Odessa's support, care, and maintenance.   During that time, they sold two of the properties Andrew had placed in the trust, leaving the Grape Street property as the trust's only real estate holding.

Following Odessa's death in November 2004, appellant purported to deed the Grape Street property to himself.   The July 2000 amendment to the trust had named him a successor trustee in place of Andrew's son, James, and, although the subsequent amendment by Odessa excluded appellant as successor trustee, appellant executed the deed in his purported capacity as trustee.   Following appellant's transfer of the Grape Street property to himself, respondent trustees Guidry and Brunner petitioned the court for an order returning the Grape Street property to the Jackson trust.   Appellant opposed the petition.   According to him, Odessa lacked the power to remove him as a trustee and beneficiary in her September 2001 amendment to the trust.   He argued the earlier July 2000 amendment therefore governed, and entitled him to receive the real estate Andrew had placed in the trust.   The court disagreed.   It found that Odessa's September 2001 amendment rendered appellant's later attempt to act as trustee in December 2004 void.   Thus, the Grape Street property remained in the Jackson trust and was eventually sold.

In August 2008, respondent trustees petitioned the court for instructions on the distribution of cash held by the trust including the Grape Street sale proceeds.   The trustees argued based upon the interplay of the 2000 and 2001 amendments that appellant was entitled to one-half of the sales proceeds.   Appellant argued to the court that the July 2000 amendment entitled him to the entire sale proceeds.   The court adopted the trustee's allocation and awarded appellant one-half of the sale proceeds.   This appeal followed.

DISCUSSION

Appellant carries the burden of demonstrating the trial court erred.   (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296;  Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102;  Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)   To do so, appellant must make a cogent argument supported by citations to the record and legal authority.¹  (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785;  Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)   Appellant contends the Jackson trust document's specific identification of the three pieces of real estate by their legal descriptions and street addresses makes unmistakable the Jacksons' intent that appellant receive the properties or their proceeds.²  Appellant states:  “By the terms of the 2000 amendment the trustor's intent was to distribute any remaining proceeds of the sale of real property specified in the 2000 amendment to appellant.”

The foundation of appellant's assertion appears to be the 2000 amendment's use of the phrase “100% interest in” to describe appellant's share of the real estate.   In his reply brief, appellant attempts to find meaning in the difference between the phrase “interest in” compared to “interest of,” and asserts the difference works to his benefit.   His reply brief states:  “[T]he phrase '100% interest in' real property ․ is an unambiguous provision.   The trustors['] wording of '100% interest in' and not '100% interest of' is clearly consistent with the intent that the Appellant receive either the property or cash equivalents resulting from sale of the properties․”  Appellant's hitching the success of his appeal to the difference between the words “in” and “of” is unavailing because he offers no authority or argument that the difference between those two words matters here.   In any case, appellant's contention would have us deem “100% interest” to mean “proceeds” even though that word is not in the Jacksons' 2000 amendment.

Appellant's reliance on Estate of Simoncini (1991) 229 Cal.App.3d 881, is unavailing because the decision is inapposite.   That decision involved a will with two provisions;  one provision divided the decedent's property equally between her son and daughter;  the second provision governed the distribution of a specific building that was likely to be the principal asset of the estate.  (Id. at p. 884.)   The decedent's overarching aim was to ensure her son could afford to remain living in the building while making sure the daughter received a fair share of the estate.   The appellate court interpreted the two provisions to ensure the mother's overall intention was fulfilled.   The court stated:  “It is clear to us that although the general intent of the testatrix was to divide her Estate equally between appellant and respondent, her very specific intent with regard to her real property was to leave it to respondent;  and that in order to facilitate that devise and insure that the house would not have to be sold in order to effect an equal distribution of the Estate, she set a fixed, stipulated value on the Franklin Street property to be used in calculating the amount of appellants share of the Estate.  (Id. at p. 890.)   Beyond general language in the decision supporting the notion that courts must interpret trust documents so as to fulfill the trustors intent, neither the facts nor holding in Simoncini help appellant.   Appellant, in sum, fails to demonstrate the trial court erred.  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [judgment presumed correct unless error is affirmatively shown].)

DISPOSITION

The judgment is affirmed.   Respondents to recover their costs on appeal.

WE CONCUR:

LICHTMAN, J.^*

FOOTNOTES

FN1. Appellant does not help himself by misquoting legal authority that he cites.   For example, his reply brief quotes a version of Probate Code section 21134, subdivision (a) that was superseded by significant amendments in 2002.   He quotes subdivision (a) as follows:“Except as otherwise provided in this section, if specifically given property is sold by a conservator the beneficiary of the gift has a right to a general pecuniary equal to the net sales of the property.”In fact, the statute since 2002 has read:“Except as otherwise provided in this section, if after the execution of the instrument of gift specifically given property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, the transferee of the specific gift has the right to a general pecuniary gift equal to the net sale price of, or the amount of the unpaid loan on, the property.  (Stats.2002 c. 138 (A.B.1784).).  FN1. Appellant does not help himself by misquoting legal authority that he cites.   For example, his reply brief quotes a version of Probate Code section 21134, subdivision (a) that was superseded by significant amendments in 2002.   He quotes subdivision (a) as follows:“Except as otherwise provided in this section, if specifically given property is sold by a conservator the beneficiary of the gift has a right to a general pecuniary equal to the net sales of the property.”In fact, the statute since 2002 has read:“Except as otherwise provided in this section, if after the execution of the instrument of gift specifically given property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, the transferee of the specific gift has the right to a general pecuniary gift equal to the net sale price of, or the amount of the unpaid loan on, the property.  (Stats.2002 c. 138 (A.B.1784).)

FN2. Respondents contend the doctrine of “ademption” applies to the Grape Street property because it was sold.   Under that doctrine, a specific bequest fails if property is not in the estate when the estate is distributed.  “[A]s a general rule, since the property gifted is not in the estate, the specific gift ‘fails' and the beneficiary has no ‘substitute’ rights in the estate-i.e., he or she cannot claim the sale proceeds as a general pecuniary gift beneficiary in place of the specific gift.”  (Ross, Cal. Practice Guide:  Probate (The Rutter Group 2008) ¶ 16:544, p. 16-172.3.) Because appellant does not demonstrate the trial court erred, we need not address respondents' reliance on ademption..  FN2. Respondents contend the doctrine of “ademption” applies to the Grape Street property because it was sold.   Under that doctrine, a specific bequest fails if property is not in the estate when the estate is distributed.  “[A]s a general rule, since the property gifted is not in the estate, the specific gift ‘fails' and the beneficiary has no ‘substitute’ rights in the estate-i.e., he or she cannot claim the sale proceeds as a general pecuniary gift beneficiary in place of the specific gift.”  (Ross, Cal. Practice Guide:  Probate (The Rutter Group 2008) ¶ 16:544, p. 16-172.3.) Because appellant does not demonstrate the trial court erred, we need not address respondents' reliance on ademption.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

BIGELOW, P. J.