Beauchamp's Estate, In re

• Decision Date: 30 November 1967
• Citation: 256 Cal.App.2d 563,64 Cal.Rptr. 340
• Parties: In the Matter of the ESTATE of Dorothy O. BEAUCHAMP, Deceased. Eugene M. ELSON, Guardian Ad Litem, Petitioner and Appellant, v. Edwin L. VENTURINI, Respondent. Civ. 31932.
• Court: California Court of Appeals Court of Appeals

Page 340

64 Cal.Rptr. 340

256 Cal.App.2d 563

In the Matter of the ESTATE of Dorothy O. BEAUCHAMP, Deceased.

Eugene M. ELSON, Guardian Ad Litem, Petitioner and Appellant, v. Edwin L. VENTURINI, Respondent.

Civ. 31932.

Court of Appeal, Second District, Division 3, California.

Nov. 30, 1967.

Powers, Himrod & Pepys and Walter R. Powers, Los Angeles, for petitioner and appellant.

Donald Kolts, Los Angeles, for respondent.

FRAMPTON, ^* Associate Justice Pro Tem.

The petitioners, Anthony James Venturini, Paul Daniel Venturini, Elizabeth Ann Venturini and Michael John Venturini, minors, are the children of Edwin Levio Venturini, and the grandchildren of the testatrix Dorothy O. Beauchamp, deceased. Edwin Levio Venturini, hereinafter referred to as the respondent, is the son of the deceased. Eugene M. Elson was appointed as guardian ad litem of the minor petitioners as the result of a petition filed by Jean Dye wherein it was alleged that she was the natural mother of the minors who were then residing with her in the City of Cincinnati, State of Ohio; that she and the respondent were divorced and under the decree of divorce custody of the minor children had been awarded to her; the minors have an interest in the estate of the deceased, who is their paternal grandmother and that the interest of the father of said minors, who is the son of the decedent, in said estate is and will be adverse to the interest of the minors therein.

On October 7, 1966, the minors, through their guardian ad litem, filed their petition to determine heirship, in which they alleged that 'Petitioners have an interest in the estate of said decedent by virtue of Paragraph THIRD of the Last Will and Testament of said decedent, admitted to probate herein and which reads as follows: 'THIRD: Having in mind my beloved grand-child I hereby give, devise and bequeath unto my beloved son, Edwin Levio Venturini, all my property of every kind and description and wherever situated, it being my intention hereunder to leave to my beloved son my entire estate and to make him the residuary legatee hereunder. I have discussed with my son and he fully understands that it is my wishes that he keep and retain my entire estate intact and use the same for the education of any children that he may have. In the event my son aforementioned predeceases me, or dies before distribution of my estate I hereby give, devise and bequeath to his issue my entire estate aforementioned.'

'That it is the contention of petitioners that decedent intended to and did create a trust of her estate for the benefit of petitioners and for the purpose of their education, and that said estate should be used solely for the education of each of petitioners until such objective has been achieved.' The respondent filed his claim of interest in the estate, and upon the trial, the court rendered judgment directing that petitioners take nothing by reason of their petition, 'That decedent did not intend to and did not create a trust in any part of her estate and under her last will and testament for the benefit of petitioners for the purpose of their education or for any other purpose, and that no trust was imposed on the estate by said decedent's last will and testament.' The appeal is from the judgment.

The will was drawn by Chauncey G. Kolts, an attorney at law, and by its terms appointed the respondent to act as executor, or if he should not be eligible to act, or should fail, refuse or become incapacitated to act, then Chauncey G. Kolts was appointed to act as such executor. The will also contained the request that the executor employ as his attorney 'my friend,' Chauncey G. Kolts or the firm of Kolts and Kolts. The will was subscribed on November 19, 1950. According to the petition for the appointment of a guardian ad litem, Anthony James Venturini was born on June 22, 1948; Paul Daniel Venturini was born on December 31, 1950; Elizabeth Ann Venturini was born on June 8, 1952, and Michael John Venturini was born on December 20, 1953.

Chauncey G. Kolts qualified and was appointed as executor under the will. Donald Kolts, his brother and a member of the firm of Kolts and Kolts, is the attorney for both the executor and the respondent.

The testimony adduced at the trial discloses that the testatrix had been a client of Chauncey G. Kolts since 1928, and that she consulted him concerning the preparation of her will. Chauncey G. Kolts testified that 'She told me she wanted to make a will. She told me that she had one son, which I well knew since I knew him since he was a young boy. She said she had one grandchild. She said she wanted to leave everything she had to her son, but she would like to provide for the education of her grandchild. I told her that, in my opinion the proper way to do that would be to create a testamentary trust in which she would name someone as trustee who would have certain powers and duties and be paid a compensation for acting as a trustee; that the time * * * amounts that were to be expended for education should be set out and labeled in the trust; that the length and duration of the trust should be set, and any other pertinent facts that might go into the trust. She said, no, she didn't want to do that because she felt it would tie her property up. She said she wanted to leave it to her son outright; that he was a good father and she had discussed it with him and she knew he would see that his child was properly educated.' That portion of the testimony relating to the desire and intent of the testatrix was stricken from the record and the balance of the testimony was allowed to remain for the limited purpose of showing that she understood the term trust. The evidence disclosed that the testatrix did not dictate the language of the will, but the words used were those of Chauncey G. Kolts. He did not explain to the testatrix what the term 'residuary legatee' meant, and she did not ask him what it meant. One of the interrogatories propunded to the respondent states: 'Did you and the DECEASED discuss her wishes in regard to your retaining her entire estate intact and use the same for the education of any children that you may have(?)' The respondent's answer to this interrogatory was 'No. At the time the Will was executed I was in the Armed Forces of the United States and I did not know that my Mother executed a Will until after her death.'

Paragraph First of the will reads: 'I direct my Executor, hereinafter named to pay my just debts, last illness and funeral expenses as soon after my demise as may be practicable from any funds available in my estate.' Paragraph Second of the will reads: 'I declare that I am a widow and that I have one child, Edwin Levio Venturini, who is presently in the armed forces of the United States. I further declare that I have one grand-child, who is the issue of my beloved son.' Paragraph Third of the will is as hereinabove set forth in the petition to determine heirship.

The sole issue presented is whether the will created a trust or equitable charge against the respondent legatee for the benefit of his minor children. The primary contentions of the petitioners are that '1. The Will, having been drawn by an attorney, the technical meaning of the words used therein will be applied. 2. That although no formal trust was created, the Will shows an intention to create a trust or equitable charge against the devisee. 3. Where...