Alba's Estate, In re

• Decision Date: 08 December 1965
• Citation: 48 Cal.Rptr. 100,238 Cal.App.2d 618
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Helen ALBA, Deceased. Stanley A. BIERNAT and Ruth Keegan, Petitioners and Respondents, v. Lewis ALBA, Objector and Appellant. Civ. 22656.

Page 100

48 Cal.Rptr. 100

238 Cal.App.2d 618

In re ESTATE of Helen ALBA, Deceased.

Stanley A. BIERNAT and Ruth Keegan, Petitioners and Respondents, v. Lewis ALBA, Objector and Appellant.

Civ. 22656.

District Court of Appeal, First District, Division 1, California.

Dec. 8, 1965.

Monaco, Ice & Reeve, San Mateo, for appellant.

Edward E. Heavey, San Francisco, for respondents.

MOLINARI, Justice.

Appellant, Lewis Alba, appeals from the judgment in favor of respondents, Stanley A. Biernat (as trustee for his minor children) and Ruth M. Keegan, adjudging that respondents are entitled to receive their respective bequests of $10,000 each from the estate of Helen Alba under the provisions of her will and that said bequests are to be paid from the sale of decedent's one-half undivided interest in certain property situated in Redwood City. The sole issue presented on this appeal is whether the trial court properly denied appellant's petition seeking to have this property set aside as a probate homestead, this determination in turn making the subject property, which was the sole asset in decedent's estate, available for satisfaction of decedent's bequests to respondents. We have concluded that the trial court erred and that it should have set aside a probate homestead to appellant.

The Record ¹

Appellant and decedent were husband and wife and remained married until decedent's death. ² During the marriage each of the spouses worked and they acquired three parcels of real property, each of which was held in joint tenancy. On April 4, 1962 appellant and decedent consulted an attorney for the purpose of having a will drawn for each of them. On April 10, 1962, after further consultation with their attorney and for the purpose of creating some estate upon which a will could act, appellant and decedent changed their ownership in one of the three parcels of realty from that of joint tenancy to tenancy in common. No change in the ownership of the other two parcels held in joint tenancy was effected, however. On this same date, decedent executed the will which was in effect at the time of her death. In this will decedent bequeathed $10,000 to the children of Stanley Biernat, her son by a former marriage and $10,000 to her sister, Ruth M. Keegan, and provided that the residue of her estate was to go to appellant. At the time of decedent's death the only asset in her estate consisted of her one-half undivided interest in the aforementioned property which she and appellant had converted into a tenancy in common. The appraised value of this interest was $14,000, the total appraised value of the subject property being $28,000.

On March 19, 1964 appellant petitioned the court below for an order setting aside the subject property held by him and decedent as tenants in common as a probate homestead. This petition was heard at the same time as respondents' petition for a decree determining interests in decedent's estate. At the hearing it was established, in addition to the foregoing facts, that the subject property was the residence of appellant and decedent up to the time of decedent's death and continued to be appellant's residence after his wife's death, and that neither appellant nor decedent had selected a homestead during the latter's lifetime. At the conclusion of the hearing, the trial court determined that respondents, as legatees under decedent's will, were entitled to receive their respective bequests of $10,000 from decedent's one-half undivided interest in the subject property, and that appellant was not entitled to a probate homestead in this property.

Appellant's Right to a Probate Homestead.

Probate Code section 661, ³ which concerns itself with the setting apart of a probate homestead where none has been designated during the decedent's lifetime, provides in relevant part as follows: 'If no homestead has been selected, designated and recorded, * * * the court, in the manner hereinafter provided, must select, designate and set apart and cause to be recorded a homestead for the use of the surviving spouse and the minor children * * *.' Under this section, it has been held that the duty of the probate court to set aside a homestead is mandatory (Estate of Ronayne, 104 Cal.App.2d 53, 57-58, 231 P.2d 105; Estate of Rosenaur, 107 Cal.App.2d 461, 462, 237 P.2d 17; Estate of Shively, 145 Cal. 400, 402, 78 P. 869) and that the right of the applicant to a probate homestead is paramount to all others even though its assertion would absorb the entire estate. (Estate of Nelson, 224 Cal.App.2d 138, 144, 36 Cal.Rptr. 352; Estate of Davis, 86 Cal.App.2d 263, 265, 194 P.2d 713; Estate of Kennedy, 157 Cal. 517, 522, 108 P. 280, 29 L.R.A.,N.S., 428.)

As regards the application of section 661 to the facts in the instant case, appellant's showing at the trial level appears to be in full compliance with the provisions of this section. It was established that neither appellant nor decedent had selected or designated a homestead during the latter's lifetime and that appellant was the surviving spouse of decedent. ⁴

Respondents, while apparently admitting that the facts of the instant case meet the requirements for the setting aside of a homestead under section 661, contend that the right to a probate homestead may be waived or lost by the acts and conduct of the applicant and that appellant, by joining with his wife in the transfer of their joint tenancy property into tenancy in common in order to provide an estate for his wife to bequeath, has waived his right to a probate homestead. ⁵

That the right to a probate homestead may be waived by agreement or conduct is a settled principle of law. (See Estate of Brooks, 28 Cal.2d 748, 750, 171 P.2d 724; Soares v. Steidtmann, 130 Cal.App.2d 401, 403, 278 P.2d 953.) In the present case, although the record does not affirmatively show that the basis of the trial court's determination was waiver on the part of appellant of the right to a probate homestead (since the trial court merely found the facts hereinbefore narrated and concluded therefrom that appellant was not entitled to a probate homestead), a finding of waiver results by implication from the express findings which were made. (Auer v. Frank, 227 Cal.App.2d 396, 406, 38 Cal.Rptr. 684; Ruppert v. Jackson, 212 Cal.App.2d 678, 682-683, 28 Cal.Rptr. 467.) ⁶

Our review of the California cases in which the doctrine of waiver has been applied to defeat an applicant's right to a probate homestead leads us to the conclusion that this principle is inapplicable to the facts in the instant case. Beginning our treatment of the issue before us with a general discussion of the concept of waiver, we note that the requirements for finding an effective waiver are as follows: There must be an existing right, a knowledge--actual or constructive--of it existence, and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce it as to induce a reasonable belief that the right has been relinquished. (Hopson v. National Union etc. Cooks, Stewards, 116 Cal.App.2d 320, 324, 253 P.2d 733; Bettelheim v. Hagstrom Food Stores, 113 Cal.App.2d 873, 878, 249 P.2d 301; Zoeller v. Schneider, 141 Cal.App.2d 684, 687, 297 P.2d 40; Newman v. Albert, 170 Cal.App.2d 678, 685, 339 P.2d 588.) Accordingly, it is well settled that where acts are relied on to establish abandonment or waiver of a legal right there must be either clear, unequivocal, and decisive acts of the party showing such purpose or acts amounting to an estoppel on his part. (Hopson v. National Union etc. Cooks, Stewards, supra, 116 Cal.App.2d, p. 325, 253 P.2d 733; Jones v. Sunset Oil Co., 118 Cal.App.2d 668, 673, 258 P.2d 510; Newman v. Albert, supra, 170 Cal.App.2d, p. 685, 339 P.2d 588.)

As already pointed out, an applicant for a probate homestead may waive his right thereto by an agreement to that effect, or he may lose that right by his conduct. (Estate of Brooks, supra, 28 Cal.2d p. 750, 171 P.2d 724.) Although waiver of a probate homestead by agreement may take the form of a writing such as an attachment to the will of the deceased spouse (Estate of Wyss, 112 Cal.App. 487, 494-497, 297 P. 100), a separation agreement (Estate of Yoell, 164 Cal. 540, 550-554, 129 P. 999), or a prenuptial agreement (Estate of Howe, 81 Cal.App.2d 95, 98-99, 183 P.2d 329), the courts which have been confronted with such agreements have subjected them to an extremely strict construction in order to preserve the surviving spouse's right to a probate homestead by adhering to the rule that such right should not be held to have been surrendered by an agreement of the spouses except by clear and explicit language (Estate of Claussenius, 96 Cal.App.2d 600, 613, 216 P.2d 485; Warner v. Warner, 144 Cal. 615, 618, 78 P. 24). This principle has been applied in numerous cases involving family allowance. (See Estate of Whitney, 171 Cal. 750, 756, 154 P. 855; Estate of Bidigare, 215 Cal. 28, 30, 8 P.2d 122; Estate of Myers, 115 Cal.App. 443, 446, 1 P.2d 1013; Estate of Shapero, 39 Cal.App.2d 144, 146, 102 P.2d 569; Estate of McCoy, 51 Cal.App.2d 483, 485, 125 P.2d 71; Estate of Schwartz, 79 Cal.App.2d 308, 309, 179 P.2d 868; Estate of Brisacher, 172 Cal.App.2d 392, 396, 342 P.2d 384.) In Brooks, the Supreme Court, speaking of the respective rights to family allowance and to a probate homestead, stated that 'cases construing one are cited authoritatively in cases construing the other.' (P. 750 of 28 Cal.2d, p. 724 of 171 P.2d)

In the instant case it is apparent that we are not involved with a waiver by agreement since there is no evidence of any such agreement. As to whether appellant's conduct can be held to constitute a waiver, we note, from a review of the cases decided in this state where the right to family allowance or a probate homestead has been held to have been lost by conduct, that such conduct may occur either before or subsequent to the defendant's death. The cases where the...