IN RE: ESTATE of Walter H. STEWART (1967)

This is an appeal from a judgment of the Superior Court of Fresno County determining interests in the Estate of Walter H. Stewart, deceased. Appellants are the step-children of the decedent and his sole surviving beneficiaries under his will. Respondent is decedent's widow and the executrix of his estate.

The undisputed facts, as presented in the settled statement, are: The decedent, his former wife Jennie M. Stewart and his brother John E. Stewart owned real property as tenants in common; each owned an undivided one-third interest in the property. On June 19, 1936, the parties agreed to will their respective one-third interests in the property to the survivors for their natural lives. Specifically, this agreement provided in part:

‘WHEREAS, the parties hereto are owners as tenants in common of certain property located in the town of Selma, State of California, and it is their mutual desire to make disposition of their respective properties, in the event of death, so that the survivors or survivor shall enjoy the use of such property so held by them as tenants in common until the death of the last tenant in common, then said property to be distributed among the children of the respective parties, in accordance with the terms and provisions of the respective wills of the parties hereto,——

‘NOW, THEREFORE, it is agreed that, in harmony with this agreement, the parties hereto have this day each executed a will by which the survivors or survivor is given a life estate in the property held as tenants in common by the parties hereto; that each has read the will of the other and understands the same and approves such will, and each hereby agrees not to revoke or cancel his or her will, without the written consent of the other parties hereto.’

Accordingly, decedent willed his interest to his wife Jennie M. Stewart and his brother John Stewart for their natural lives. He also willed the remainder to his daughter and to his six stepchildren (the children of Jennie Stewart) in equal shares. Decedent's will was apparently read and approved by the other tenants in common.

John Stewart died in 1947 and his interest in the Selma property passed to decedent and decedent's wife Jennie Stewart for their natural lives. Jennie Stewart died in 1949 and decedent acquired her interest in the property for the remainder of his life under the terms of her will. He also acquired title to his brother John's one-third interest in fee simple absolute; at the time of John Stewart's death in 1947 none of the beneficiaries named in his will was living and decedent inherited from his brother.¹

After Jennie's death decedent married respondent Viola Stewart. Decedent died on May 1, 1956. He was survived by his widow Viola, a brother Sankey M. Stewart and the six step-children of his marriage with Jennie Stewart. His estate consisted solely of the one-third interest which he owned in the Selma property in 1936 and the additional one-third interest which he had inherited from the estate of his brother John.

Decedent died without making a new will. Thus, respondent was appointed administratrix of his estate and the will which decedent made on June 19, 1936, was admitted to probate. Thereafter respondent filed a petition for a decree determining interests in decedent's estate claiming a one-half share. Decedent's brother Sankey and appellants contested her claim. The trial court rendered judgment declaring that respondent was entitled to inherit one-half of the estate as decedent's post-testamentary spouse under Probate Code section 70 and that appellants were entitled to the other half under decedent's will.

It is undisputed that decedent made no provision for respondent in the will which was admitted to probate or by marriage contract. It is also undisputed that under these circumstances respondent is entitled, under Probate Code sections 70 and 223, to inherit as if decedent had died intestate.

Section 70 provides:

‘If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless to spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provisions; and no other evidence to rebut the presumption of revocation can re received.’

Section 223 provides:

‘If the decedent leaves a surviving spouse, and no issue, the estate goes one-half to the surviving spouse and one-half to the decedent's parents in equal shares, or if either is dead to the survivor, or if both are dead to their issue and the issue of either of them, by right of representation.’

Thus, appellants do not dispute the court's judgment awarding respondent one-half of the one-third interest in the Selma property which decedent inherited from his brother John. Their sole contention is that they acquired an enforceable right to inherit the one-third interest which decedent owned in the property in 1963 under a quasi-specific performance theory (Rundell v. McDonald, 62 Cal.App. 721 P. 1082), or a quantum meruit theory (Long v. Rumsey, 12 Cal.2d 334, 84 P.2d 146), or on the basis of a resulting trust (Russ v. Mebius, 16 Cal. 350), and that this right is unaffected by Probate Code section 70.

Probate Code section 70 stems from the common law and is founded on the historic policy which looks with disfavor toward a testator's failure to provide for his surviving spouse (Estate of Turney, 101 Cal.App.2d 720, 226 P.2d 80; 42 Cal.L.Rev. 710). However, it is manifest that the plain language of the section does not restrict the testamentary powers of the testator to freely dispose of his separate property after marriage, nor does if affect pre-existing binding contracts. To the contrary, the section is concerned only with rectifying a possible oversight and simply means that, if the testator has failed to mention his surviving spouse in a will which he made prior to marriage and has failed to provide for the spouse by a marriage contract, the surviving spouse inherits as if the testator had died intestate (Estate of Piatt, 81 Cal.App.2d 348, 183 P.2d 919).

Thus, the crucial question is whether decedent had the power, during his lifetime, to will the property to respondent or anyone else other than appellants. If so, the court correctly determined that respondent was entitled to one-half of the one-third interest which the testator owned in the Selma property on June 19, 1936. On the other hand, if appellants acquired an enforceable right to inherit this property on the death of decedent, as they assert, the court erroneously awarded a one-half share to respondent. If decedent did not have the power to escape the obligation which he incurred under the contract which he made with his former wife Jennie and his brother John by disposing of the property under a new will, it follows that he could not do so by the failure to make a will after he married respondent, nor would section 70 have this effect.²

We conclude that appellants have an enforceable right to inherit the disputed property and that this property cannot, in equity, be considered a part of decedent's estate under Probate Code section 70 which respondent would be entitled to inherit as if decedent had died intestate. First, decedent's agreement with his former wife and deceased brother recites that upon the death of the surviving tenant in common, the property is to be ‘distributed among the children of the respective parties in accordance with the terms and provisions of the respective wills of the parties.’ Accordingly, decedent willed his interest to his daughter and his six step-children in equal shares.³ Second, the agreement states that each tenant in common read the other's will, approved it and the approved wills shall not be revoked without the written consent of all of the parties. Third, the contracting parties abided by the terms of their agreement and did not modify, change or revoke their wills during their respective lifetimes. In fact, decedent, who was last to die, received the vain benefit of the contract; he had the full use and enjoyment of the entire parcel after the death of his wife Jennie and his brother John for the remainder of his lifetime.

Admittedly, the cases cited by appellants in support of their position are not directly in point. They are not cases where the promise to leave the property to the named beneficiary in the will was only incidental to the main purpose of the contract, as is true in the instant case. To the contrary, they are cases in which the promise to will the property was made directly to the claimant and for his direct benefit. However, a question similar to that presented in the instant case was before the California Supreme Court in Brewer v. Simpson, 53 Cal.2d 567, 2 Cal.Rptr. 609, 349 P.2d 289. There a husband and wife made mutual wills that provided that all of the property of the first to die would go to the survivor and that upon the death of the survivor the property would go one-half to the named relatives of the husband and one-half to the named relatives of the wife. The husband died and the wife inherited the property under the mutual will. Later the wife married one Ross and transferred all of her property to herself and Ross in joint tenancy. The wife's named heirs then brought an action for specific performance of the contract created by the mutual will and for a declaration of trust and an accounting. In affirming the trial court's judgment in favor of the wife's heirs the Supreme Court at page 588 of the opinion, 2 Cal.Rptr. at page 619, 349 P.2d at page 299, stated:

‘Defendants [Abigail and her second husband] argue that any promise of Abigail to leave one half the property to plaintiffs, her own kin, if she survived George, was only incidental to the main purpose of the contract, which was to make sure that if she survived George she would receive the entire estate, and if she did not survive him her own relatives would receive one half of the estate; therefore, defendants say, the contract was not ‘made expressly for the benefit’ of plaintiffs (Civ.Code, § 1559) and plaintiffs, as mere incidental beneficiaries, cannot enforce it. Acceptance of this argument would lead to peculiar conclusions. The will of Abigail and the will of George each set forth the gifts to the kindred of both in language which does not differentiate between the intent to benefit the testator's own kindred and the intent to benefit the kindred of the spouse. Yet Abigail would have us believe that she intended that her relatives should be the express beneficiaries of George's will it she predeceased George but only incidental beneficiaries of her will of she survived George. From this it would follow that George's will, listing the gifts to kindred of both spouses in the same straight-forward manner as Abigail's nevertheless is the vehicle of the same subtle differentiation of intent.

‘On the other hand, the contract evidenced by the mutual wills is readily and reasonably susceptible of the trial court's view that it was ‘made for the express benefit of all the persons named therein as beneficiaries.’ As the trial judge stated, ‘After having lived together for twenty-six years, * * * [George and Abigail] being fairly wise in the ways, temptations and frailties of human nature, could have entertained the firm desire that the estate which they had built together, through their own industry, thrift and sacrifice, go to relatives, even those for whom they had no deep concern and to whom they recognized no obligation or debt of gratitude, than to a second wife or husband who would have no natural or ethical claim upon the fruits of their joint labor.’'

The judgment is reversed with directions to the superior court to modify its decree determining interest in the estate of decedent Walter H.Stewart to conform with the views expressed herein.

FOOTNOTES

1.  John E. Stewart was also survived by a brother Sankey M. Stewart. However, for reasons which do not appear in the settlement statement, Sankey M. Stewart did not inherit any part of the estate of John E. Stewart.

2.  We have not been cited, nor has our independent research uncovered, a single case which has construed the effect of Probate Code section 70 on a mutual will contract of the nature presented herein. However, we have noted with approval the opinion of the New York Supreme Court where the court construed a statute which strongly parallels our own Probate Code section 70. The court stated:‘Inasmuch as our courts enforce agreements of the character here considered, even where the promisor makes a variant will or no will at all, and dies intestate, there is no sound reason why the agreement in suit should not be enforced simply because the intestacy is created by the statute; the contract in any event remains unaffected. And whether the plaintiff be a creditor under the contract, or a cestui que trust under an implied trust, his rights cannot be affected by Sce. 35 of the Decedent Estate Law any more than those of any other creditor or cestui que trust.’ (Allen v. Payson, 170 Misc. 759, 11 N.Y.S.2d 28, 32).

3.  The term ‘children’ does not include step-children unless the testator's contrary intent is clear (95 C.J.S. Wills § 654, p. 957). However, it is clear that the contracting parties intended to include step-children within the meaning of the term ‘children’ as used in the agreement. Decedent bequeathed his property to his daughter and six step-children in equal shares, indicating that he considered them alike. Moreover, decedent named each step-child by name and the other tenants in common had read the will and approved it.

GARGANO, Associate Justice.

CONLEY, P. J., and STONE, J., concur.