BENNETT v. FORREST ET AL (1943)

The plaintiff brought this action against Georgina E. Forrest individually and as executrix of the last will and testament of Francis G. Forrest, deceased, and The San Francisco Bank, depositary of the funds of the estate, praying for a decree that, as sole heir–at–law of the deceased, she is entitled to the whole estate with the exception of the sum of $2,000, the amount of a legacy given a former wife of the deceased; restraining Georgina E. Forrest from disposing of any of said property, and that the bank holds said funds as the agent of the executrix in trust for the use and benefit of plaintiff.

The complaint contains a number of allegations as to which no issue was taken by the answer. They are to the effect that on February 28, 1938 Francis G. Forrest and Georgina E. Forrest were husband and wife; that on that day they entered into a property settlement agreement (the material parts of which will later appear); that in March of 1938 an interlocutory decree of divorce was entered in favor of Mrs. Forrest; that about fifteen months later Mr. Forrest died, at which time no final decree of divorce had been made; that he left a will dated August 6, 1921, and a codicil thereto dated July 14, 1933, that the will and codicil were duly admitted to probate in the superior court in San Francisco; that Mrs. Forrest was appointed executrix thereof, and that by it the entire estate was devised and bequeathed to Mrs. Forrest with the exception of the sum disposed of by the said legacy.

On the issues raised by the denials and averments of the answer of defendant Forrest, the trial court made findings to the following effect:

That on July 8, 1937 Mrs. Forrest commenced an action for separate maintenance against her husband, during the pendency of which the parties entered into a written agreement which settled their property rights, and provided for mutual releases as to the items of property therein allotted to each; that upon the execution of such agreement and releases the wife amended her complaint and prayed for a divorce; that in said action an interlocutory decree in favor of the wife was entered in March 1938 but was not followed by a final decree; that the said agreement contained, among others, the following provisions: “All property hereafter acquired by and all future earnings of each shall be and become the sole and separate property of each party, respectively, free from all claims of the other party, and each party shall have the right to dispose of his or her property, both real and personal, that he or she may hereafter acquire, as fully and effectively as if the parties hereto were not and had never been married. Each party shall have the right to dispose of his or her property, by last will and testament, or otherwise, and each party agrees that all the estate of the other party shall, subject to the within agreement and to his or her debts and engagements, go and belong to the person, or persons, who would have become entitled thereto if the parties had never been married; and it is further covenanted and agreed that each party will permit any will of the other to be probated, and will allow administration upon his or her estate to be taken out by the persons or person who would have been entitled thereto, if the parties had never been married”;

That the plaintiff and Georgina E. Forrest were opponents in the probate proceedings hereinbefore referred to, wherein an order was duly made and entered adjudicating that plaintiff was not the sole heir–at–law of Francis G. Forrest, deceased; that plaintiff appealed from said order, which, however, was affirmed and remittitur filed in said proceedings;

That Georgina E. Forrest claims to be entitled to distribution of a portion of the property of said estate pursuant to the terms of said will referred to in the complaint; that as executrix of said estate she has filed in said proceedings a petition for distribution of said estate to herself individually; that plaintiff herein filed objections to said petition for distribution of said estate to herself; that said petition and objections thereto were heard and submitted to the court for decision, and said objections sought distribution of said estate to plaintiff upon the same grounds as asserted in the complaint herein; that a decree of distribution has been entered, directing distribution of said estate as prayed for in said petition for distribution; that no appeal has been taken therefrom, and said decree has become final; that the claim of said Georgina E. Forrest to be entitled to distribution of a portion of said estate is not in violation of the terms of said property settlement agreement or of the understanding and agreement of the parties thereto, and the assertion of said claim does not constitute a fraud upon the plaintiff as the sole heir of said decedent; that the title acquired by said Georgina E. Forrest individually under the last will and testament of said deceased, or as executrix thereof, is not held by her in trust for plaintiff;

That the above–mentioned decree of distribution contains the following finding: “that prior to the death of said Francis G. Forrest, and after the execution of said agreement [referring to the agreement here involved], said decedent and Georgina E. Forrest effected and consummated a reconciliation and resumed marital relations; that said agreement dated February 28, 1938, including the provisions thereof set forth in the opposition of Helen F. Bennett to petition for final discharge, was not in force or effect at the time of the death of said decedent”;

That said decree of distribution was made and entered in said probate proceedings on December 18, 1941, and that no appeal has been taken from said decree and that time for appeal therefrom has expired, but the trial court expressly declined to find that the finding and adjudication of the probate court just quoted is res judicata in this action.

As conclusions of law from the foregoing admissions and findings the trial court determined that Georgina E. Forrest was entitled to judgment that plaintiff take nothing by her complaint, that the property involved in the action is the sole and separate property of Georgina E. Forrest individually, and that The San Francisco Bank be directed to pay to her individually, pursuant to the aforementioned decree of distribution, the money in its hands. Judgment was rendered accordingly. Plaintiff has appealed therefrom and prosecutes the appeal upon the judgment roll alone.

Appellant makes the following contentions: (1) That the property settlement agreement between Mr. and Mrs. Forrest was inconsistent wtih the provisions of the will theretofore executed and operated as a revocation thereof; (2) that in order that a defendant may avail himself of a former judgment as res judicata it is necessary that it be pleaded as such; and (3) that the probate court rendering such judgment was without jurisdiction to try title to the property involved.

The merits of the controversy revolve around the first question. If respondents are correct in their contention that the will of the deceased was not revoked by the property settlement agreement, it is immaterial, so far as the present action is concerned, whether the decree of the probate court is res judicata or whether that court has jurisdiction to try title.

Appellant cites Probate Code, sec. 73, as follows: “If the instrument by which an alteration is made in the testator's interest in any property previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.” She particularly relies upon In re Estate of Bassett, 196 Cal. 576, 238 P. 666; In re Estate of Martin, 31 Cal.App.2d 501, 88 P.2d 234; In re Estate of Benner, 155 Cal. 153, 99 P. 715; In re Weinstein v. Moers, 207 Cal. 534, 279 P. 444, and others to the effect that if the agreement purports to make a disposition of all of decedent's property, it is wholly inconsistent with the will. The cases cited, with the exception of Weinstein v. Moers, are concerned with the right to take by succession, or the right of a third party to take adversely to a decedent and to an estate, or the right to administer following the execution of a property settlement agreement. Cases applying to a subsequently executed will are not in point. Probate Code, sec. 72.

The basic reasoning behind section 73 is that where two instruments can not stand together, but are unequivocally opposed, since the latter of the two is the more recent expression of the testator's intent, the first must fall. The instruments herein are not wholly inconsistent––the property settlement agreement specifically permits each party to dispose of his individual property by will. If the present case the wife is not provided for as an heir at law, but is mentioned by name. After the property settlement decedent could bequeath his property to his former or his present wife just as effectually as to a stranger. In Re Estate of Forrest, 43 Cal.App.2d 347, 110 P.2d 1023, an appeal from an order appointing Mrs. Forrest as executor of her husband's estate, the court held (43 Cal.App.2d at pages 349, 350 110 P.2d at page 1024): “The next point made by the appellant is that the provisions of the property settlement agreement entered into by and between Georgina E. Forrest and F. G. Forrest were inconsistent with the provisions of the will and operated as a revocation thereof. An examination of said agreement discloses nothing inconsistent with the provisions of the will. With reference to the right to act as executrix, in said agreement it is provided, ‘And the parties hereto and each of them, do hereby expressly waive, relinquish, and surrender * * * the right to administer upon the estate of the other party.’ That provision it may be conceded would have been pertinent if this were an application for letters of administration but it is an application for letters testamentary.” “So in the instant case there is nothing on the face of the property settlement agreement showing that the existence of the will of the decedent, or any part or portion thereof, was before the contracting parties.”

In the Weinstein case, where reciprocal wills were made prior to a property settlement agreement in connection with a divorce proceeding, it was held that the surviving spouse could not claim under the will. In that case, where it affirmatively appeared that fraud had been practiced, the court found (207 Cal. at pages 538, 539, 279 P. at page 445): “that said Theresa W. Moers believed and understood that it was not necessary for her to revoke her then existing will in order that said Albert A. Moers should not, in the event of her death, receive any of her property through or under the terms of said will; that in addition said Theresa W. Moers was induced to and did refrain from revoking her said will by representations made by said Albert A. Moers that he did not and would not thereafter claim any right or interest in or to any of said property except such property as was by the express terms of said agreement set over and apart to him.” “That said claim is in violation of the terms of said agreement in this paragraph set forth, and of the understanding and agreement of the parties thereto, and its assertion constitutes a fraud upon the plaintiffs as heirs at law of said Theresa W. Moers.” The complaint herein alleges that the assertion of respondents' claim is a fraud upon the plaintiff. It is not claimed, however, that in reaching the terms of the agreement, or in its execution, fraud was practiced by either party, and the court found that there was no fraud, which effectively distinguishes the present from the Weinstein case.

Appellant's position is that in the property settlement agreement there is an express waiver, forfeiture and abandonment of all rights under the will. In Re Estate of Crane, 6 Cal.2d 218, 57 P.2d 476, 104 A.L.R. 1101, an agreement, similar to that herein, providing that there would be no opposition by either party to probate of the other's will and stating that the rights of each party in any inheritance or in the estate of the other had been settled, it was held that the agreement did not take from one the right to a bequest by the other. It was there contended that the agreement was sufficient to disclose the intent of the decedent, and the court held that its language––similar to that herein––was not susceptible to being construed as extinguishing the fund bequeathed and thus preventing its disposition by will. In Re Estate of Sorensen, 46 Cal.App.2d 35, 115 P.2d 241; 2 Words and Phrases, Perm. Ed., p. 354 et seq. In the Crane case, 6 Cal.2d at pages 220, 221, 57 P.2d at page 478, 104 A.L.R. 1101, the court said: “But, as if by intention, there is a total failure to set forth in the contract any renunciation of the right to accept and receive future gifts to the one from the other whether by way of gift inter vivos, by devise, or by bequest.” “If the testator had not executed this will until after the date of the property settlement agreement, it would not be reasonable to say that he was without right to make such subsequent will and thereby give additional property to his wife. But in substance and effect he did the same thing by leaving his will unchanged after the date of said contract.” The court then commented upon the “continuance of affectionate relations” following the agreement, as reinforcing the conclusion reached.

Appellant herein contends that the conclusion reached in the Crane case is at variance with previous cases. The previous cases cited differ in factual background from the Crane and the present case. The Crane case is the latest and is therefore the authority which an intermediate reviewing court must follow. It was preceded by In re Estate of Patterson, 64 Cal.App. 643, 222 P. 374, and followed in Re Estate of Johnson, 31 Cal.App.2d 251, 87 P.2d 900. See In re Estate of Crane, 6 Cal.2d 218, 57 P.2d 476, 104 A.L.R. 1101.

The decree in the probate court, which has become final, was admitted in evidence, the court finding “that a decree of distribution has been entered, as aforesaid, and that said defendant is entitled to deliver and pay over the properties of said estate remaining in her hands as directed in said decree of distribution, free of any claim of plaintiff, legal or equitable.”

We conclude that as an instrument the property settlement agreement did not revoke the will and codicil, and did not specifically nullify the provisions thereof bequeathing property to Georgina E. Forrest.

The judgment is affirmed.

I concur in the conclusion that the judgment herein should be affirmed, but place such concurrence upon grounds somewhat different from those upon which the majority opinion is based.

The decedent's will and the codicil thereto were holographic. The will was dated August 6, 1921, and the codicil July 14, 1933. By the terms of the will the decedent bequeathed his entire estate, except $2,000, to his wife, the respondent herein; and by the codicil he merely directed that a certain life insurance policy made payable to his mother, be paid to his sister, Mrs. Bennett, the appellant herein, for the benefit of his father and herself. Some sixteen years after the will was made and in July, 1937, respondent filed suit for separate maintenance, and obtained a decree awarding her a portion of the property and directing her husband to pay her certain sums of money, including counsel fees. He appealed, and pending the appeal negotiations were initiated for a property settlement, and on February 28, 1938, they entered into the property settlement agreement in question, which was approved by the trial court. It is a lengthy document, covering some eighteen pages of the printed transcript, and in consummation thereof the parties transferred to each other the property as provided for therein. Thereupon respondent amended her complaint in the suit for separate maintenance by asking for a divorce, and in March, 1938, she was granted an interlocutory decree; but about fourteen months later and on May 27, 1939, her husband died, no final decree of divorce having been entered.

The two major questions presented by the appeal are whether the provisions of the property settlement agreement of February 28, 1938, reasonably construed, constitute a renunciation by the parties thereto of the right to take under each other's will, and if so, whether the determination by the probate court in its decree of final distribution, that prior to the decedent's death the property settlement agreement was not in force or effect, is conclusive herein on that issue, since no appeal was taken from that decree.

As will be noted, the majority opinion, in directing an affirmance of the judgment, holds in effect that the decision rendered in In Re Estate of Crane, 6 Cal.2d 218, 57 P.2d 476, 478, 104 A.L.R. 1101, is decisive of this appeal; and this holding is based upon the assumption that the language of the property settlement agreement there considered is similar to that used in the property settlement agreement here involved. I am unable to agree with that conclusion. The material provisions contained in the agreement in that case are quoted in the opinion rendered on that appeal, and in summarizing them the court said: “The agreement of each party was, first, not to oppose the probate of the other's will; second, not to contest or oppose such will; and, third, not to apply for letters of administration or letters of administration with the will annexed upon the estate of the other. Both parties agreed that by said contract they had settled, adjusted, and forever determined ‘all of their respective rights to, of, and in any inheritance of the one from the other, respectively, or in or to the estate of either’.” The court then goes on to say: “Reading the terms of the contract as thus limited, it took away from appellant all right or claim to any interest in the property of her husband either by virtue of her status as wife or widow or as heir of her husband. But, as if by intention, there is a total failure to set forth in the contract any renunciation of the right to accept and receive future gifts to the one from the other whether by way of gift inter vivos, by devise, or by bequest. As applied to such gift, we find in the agreement no basis for an estoppel against appellant with respect to the legacy claimed in the will.”

Thus it will be seen that it was because of the absence from the agreement of any language whatever indicating a renunciation of the right to receive any devise or bequest that the court held that the wife had not surrendered her right to take under the will. But the agreement in the present case contains language and technical legal terms not found in the one in the Crane case, which in my opinion, reasonably construed, can import no other meaning than an intentional renunciation of the right of each party to take not only as heir at law of the other, but also as a devisee or legatee, and which therefore overcomes the objections upon which the decision in the Crane case mainly turned.

The language and terms referred to are embodied in the fifteenth clause of the agreement, bearing the title “Mutual Release and Discharge,” and in part read as follows: “This agreement is intended to be, and is, a full, complete, entire and final settlement of all property rights between the parties and all rights, duties and obligations arising out of the marital relation now existing, and such rights, duties and obligations as might hereafter accrue but for this agreement; * * * And the parties hereto, and each of them, do hereby expressly waive, relinquish and surrender any and all claims and rights to inherit or claim dower in, or family allowance or homestead from, or otherwise secure an interest in, any property whatsoever by, through or from the other party hereto, which claim and right said parties, and each of them, respectively, do hereby relinquish and surrender in favor of all of the heirs, legatees, devisees and assigns of such party so dying, and to the exclusion of either and each of said first and second parties hereto, respectively, including the right to administer upon the estate of the other party.” (Italics added) According to settled rules of construction, some meaning must be given, if possible, to each and every part of a written agreement, and if any meaning at all is to be given to the above italicized portion of the fifteenth clause, and especially the latter portion wherein the technical legal terms “legatees” and “devisees” are employed, it is quite impossible to reconcile such meaning with the conclusion that the parties did not intend thereby to surrender their respective rights to take under each other's will, because it is only in connection with the subject of wills that the words “legatees” and “devisees” are used.

In other words, nowhere in the Crane agreement were any such terms as “legatee” and “devisee” used, and evidently it was because of the total absence of any such terms as relate to the subject of wills that the court held that the agreement therein was “limited” to the surrender by the respective parties of their rights and interests as an heir at law to share in the estate of the other; whereas here, as pointed out, the language of the agreement was not so limited. It goes on to provide in broader terms that each of the parties “do hereby relinquish and surrender in favor of all of the heirs, legatees, devisees and assigns of such party so dying, and to the exclusion of either and each of said first and second parties hereto, respectively, * * *” (Italics added) It is my opinion, therefore, that if the disposal of the appeal herein rested solely upon the legal construction to be placed upon the property settlement agreement, the judgment could not be sustained.

However, in any event, if at the time of the decedent's death the agreement was not in force and effect, it could not preclude respondent from taking under her husband's will; and such was the adjudication by the probate court in its decree of final distribution. In this connection it was adjudged “that prior to the death of said Francis G. Forrest, and after the execution of said agreement, said decedent and Georgina E. Forrest effected and consummated a reconciliation and resumed marital relations; that said agreement dated February 28th, 1939, including the provisions thereof set forth in the opposition of Helen F. Bennett to petition for final discharge, was not in force or effect at the time of the death of said decedent; * * *” As stated, no appeal was taken from that decree, and this appeal was taken and is presented on the judgment roll alone; so that, in the absence herein of any evidence whatever, it will be presumed that the probate court's adjudication is founded on evidence legally sufficient to support it.

In contending that the probate court's adjudication is not here controlling, appellant calls attention to the trial court's finding that “This court does not find that this finding [of the probate court] is res adjudicata.” But at the most, the meaning thereof is that the court refrained from passing on that question; and even if it had, it would have been the trial court's legal conclusion, and consequently not binding on appeal.

Appellant further contends that the probate court was without jurisdiction to adjudicate the question of whether or not the agreement was in effect at the time of the decedent's death; but the cases cited in support of such contention are not in point. They deal with situations where title to property is claimed by a third party adversely to the decedent or to the estate; while here both parties claimed distribution through the decedent, appellant asserting her right thereto only as an heir at law of the decedent, and respondent basing her claim on the provisions of the will; and it is held generally that a contest involving the validity of a will or the distribution of the estate thereunder is within the jurisdiction of the probate court. In re Estate of Cover, 188 Cal. 133, 204 P. 583; In re Estate of Warner, 6 Cal.App. 361, 92 P. 191. Furthermore, in each of the following probate cases, and others which might be cited, the question of the interpretation or validity of property settlement agreements was involved, and all of the issues relating thereto were heard and determined by the court in the exercise of its probate jurisdiction. In re Estate of Cover, supra; Estate of Warner, supra; In re Estate of Johnson, 31 Cal.App.2d 251, 87 P.2d 900; In re Estate of Patterson, 64 Cal.App. 643, 222 P. 374. In fact in the In re Estate of Crane, supra, the question of the effect of the property settlement agreement was the only question presented for determination, and the matter was heard and determined by the court in the exercise of its probate jurisdiction on hearing of the petition for final distribution, and the appeal was taken from the decree made in that behalf. In the present case, the record shows that it was in response to the issues raised by respondent's petition for distribution and appellant's objections thereto and her counterpetition for distribution based upon the claim that the property settlement agreement precluded respondent from receiving any portion of the estate, that the probate court made its adjudication that the agreement was not in force or effect at the time of decedent's death; consequently the estate was distributed in accordance with the provisions of the will.

Appellant makes the point also that the bar of res judicata is not available to respondent because it was not pleaded. The record shows, however, that it was quite impossible so to do because at the time the answer was filed the contest involving the distribution of the estate was then under submission by the probate court; and the decree of distribution was not rendered until some four months after the filing of the answer. Among the defenses pleaded therein were that the matter of the petition for distribution and the objections thereto had been heard and ordered submitted by the probate court, and that the decision therein was then pending; also that “The agreement mentioned in said complaint was revoked and cancelled by the parties thereto prior to the death of said Francis G. Forrest.” It would seem that under the circumstances that was as far as respondent could go. Moreover it would appear from the trial court's final findings herein which were filed some eight months subsequent to the final decree of distribution that the question of the controlling effect of the probate court's adjudication was presented at the trial of the action.

For the reasons stated, it is my conclusion that the judgment herein should be affirmed, but upon the ground that the record herein shows that at the time of the decedent's death the property settlement agreement was not in force or effect.

WARD, Justice.

PETERS, P. J., concurs.