Buchman's Estate, In re
| Decision Date | 01 April 1955 |
| Citation | 281 P.2d 608,53 A.L.R.2d 451,132 Cal.App.2d 81 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 53 A.L.R.2d 451 In re ESTATE of Harry G. BUCHMAN, also known as H. G. Buchman, Deceased. Hamlin K. BUCHMAN, Petitioner and Appellant, v. Claire MORSE and Citizens National Bank of Los Angeles, Respondents. Civ. 20331. |
Morris Lavine, Los Angeles, for appellant.
Jerry Giesler, Beverly Hills, George I. Devor, Los Angeles, for respondent Claire Morse.
Hamlin K. Buchman, executor of the estate of his late brother, Harry G. Buchman, has filed two appeals. One is taken from an order decreeing partial distribution in favor of Claire Morse, decedent's former wife, hereinafter termed respondent; the other is from an order settling certain accounts filed by appellant. Various assignments of error arising in connection with the disposition of the several proceedings herein are also presented for review and will be adverted to subsequently.
Respondent became the wife of the decedent on November 7, 1949. No children were both of this marriage. By the spring of 1951, marital differences and difficulties had developed between the spouses to a point which impelled decedent to discuss with his then counsel, Isaac Pacht, the matter of negotiating a property settlement agreement with his wife. Thereafter, on about May 28, 1951, the decedent discussed with his attorney his desire to make a will, and submitted instructions as to the contents of the proposed document. On June 7, 1951, a form of will embodying these instructions was mailed to decedent in Chicago by his counsel. According to Pacht's testimony, this proposed will contained the following provision: There is no record that the proposed will was ever signed by decedent.
On June 29, 1951, decedent executed the will which was admitted to probate. It was a one-page document naming Hamlin K. Buchman as executor and contained two dispositive clauses, as follows:
'Second: I give, device (sic) and bequeath unto my beloved wife, Claire Buchman, one-fourth (1/4) of my entire residuary estate.
'Third: I hereby give, devise and bequeath unto my beloved brother, Hamlin K. Buchman, three-fourths (3/4) of my entire residuary estate, and in the event of the death of my wife Claire before my death, then I devise and bequeath to my said brother, Hamlin K. Buchman, my entire residuary estate.'
On July 2, 1951, respondent and decedent separated and thereafter maintained separate living arrangements. On August 2, 1951, a property settlement agreement was entered into by the spouses. Both parties had the benefit of independent legal assistance; decedent was, during the negotiations, represented by the firm of Pacht, Tannenbaum & Ross, while respondent employed Jerry Giesler as counsel. The agreement arrived at is fairly lengthy. In its preamble appear the following recitals:
The agreement contains 19 numbered paragraphs and two exhibits. The provisions most pertinent to the questions with which we will be here concerned read as follows:
'2. Concurrently with the execution of this agreement Husband shall pay to Wife the sum of Two Thousand Five Hundred Dollars ($2,500.00) in cash, the receipt of which is hereby acknowledged.
'3. Upon the effective date of this agreement Husband shall pay to Wife the sum of Twenty-Two Thousand Five Hundred Dollars ($22,500.00) in cash.
'4. Husband does hereby transfer, convey, set over, assign and quitclaim to Wife, as her sole and separate property, any and all right, title and interest that Husband has in and to the following: (The items are set out in the margin.) 1
certain described property which it is not necessary to set out. Section (e) is pertinent and reads:
'7. Each party hereto waives and relinquishes, except as in this agreement otherwise provided, any and all rights which he or she may now or hereafter have to succeed to the estate of the other; and each hereby expressly waives and relinquishes any and all rights to act as personal representative or to nominate a personal representative of the estate of the other, or to have set aside to him or to her any of the property of the other as community property, or to have set aside to him or to her by any Court having jurisdiction of any portion of the estate of the other any homestead or other property which might be set aside to a surviving husband or widow as exempt property, or to demand any family allowance, or any other right, benefit or emolument from the estate of the other, and both parties hereto agree that each will never exercise any right to select a homestead from the property of the other during his or her lifetime.
'8. It is expressly agreed between the parties hereto that this instrument is a full, complete and final memorandum of the agreement of the parties hereto covering all matters in connection with the division of the community property of the parties and all rights and claims of each and both of the parties therein or thereto, and in or to the separate property of either party, and of each and every claim of every character whatsoever one against the other, and that no agreement exists between the parties other than as herein specifically set forth; and it is hereby covenanted and agreed by each of the parties with the other that he or she will not assert or claim against the other any right or claim in or to any property of the other, except under the terms of this agreement, and except as provided by the terms and provisions of this agreement, and will not assert against the other except as herein otherwise specifically provided, any claim for alimony, maintenance or support, costs, attorneys' fees or any other claim whatsoever by reason of their marital relationship or otherwise, or in any action for divorce or separate maintenance, or in any other action or proceeding involving the marriage state or any obligations thereof wheresoever brought. * * *
'10(b) Husband agrees to pay and hold Wife harmless from obligations incurred by the Wife to the following creditors only and in amounts not exceeding the amounts set forth opposite the names of said respective creditors, to wit:
Bullocks $116.75
Bullock's Wilshire 201.48
The French Bootire 20.49
Saks Fifth Avenue 307.51
-------
Total $646.23 3
'13. All of the covenants, provisions and agreements in this instrument contained shall apply to, be binding and obligatory upon, not only the parties hereto but also their respective heirs, executors, administrators, successors and assigns. * * *
'16. Anything contained in this agreement to the contrary notwithstanding, it is expressly understood and agreed that this agreement shall be of no force or effect unless or until it shall be approved by the Court in divorce proceedings between the parties instituted in a court of competent jurisdiction and incorporated in and made a part of the decree or judgment of the Court in such proceedings, the parties hereby agreeing that this agreement shall be submitted to the Court in which any such proceedings are pending with the request that it be approved by said Court as being fair and equitable, and be incorporated in and made a part of the judgment or decree of said Court in such proceeding.
'17(b) Should this agreement be submitted for approval in a divorce action between the parties, and the Court fail to approve the same, then this agreement shall be of no force or effect, and said action shall thereafter proceed as an adversary action after reasonable notice...
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