Carter's Estate, In re

• Decision Date: 19 October 1956
• Citation: 47 Cal.2d 200,302 P.2d 301
• Court: California Supreme Court
• Parties: ESTATE of Fred Mason CARTER, also known as Fred M. Carter, Deceased. AMERICAN CANCER SOCIETY et al., Appellants, v. CHURCH DIVINITY SCHOOL OF THE PACIFIC, Respondent. ESTATE of Mabel C. CARTER, also known as Mabel Carter, Deceased. AMERICAN CANCERN SOCIETY et al. Appellants, v. CHURCH DIVINITY SCHOOL OF THE PACIFIC, Respondent. S. F. 19359, 19360.

Page 301

302 P.2d 301

47 Cal.2d 200

ESTATE of Fred Mason CARTER, also known as Fred M. Carter, Deceased.

AMERICAN CANCER SOCIETY et al., Appellants, v. CHURCH DIVINITY SCHOOL OF THE PACIFIC, Respondent.

ESTATE of Mabel C. CARTER, also known as Mabel Carter, Deceased.

AMERICAN CANCERN SOCIETY et al. Appellants, v. CHURCH DIVINITY SCHOOL OF THE PACIFIC, Respondent.

S. F. 19359, 19360.

Supreme Court of California, In Bank.

Oct. 19, 1956.

Rehearing Denied Nov. 14, 1956.

Peart, Baraty & Hassard, Joseph S. Rogers, San Francisco, Gerald S. Chargin, San Jose, J. Clark Benson, San Francisco, Richard G. Lean, Douglas, Zingheim & Allen, San Jose, and Bruce F. Allen, Sacramento, for appellants.

Ridley Stone, for respondent.

McCOMB, Justice.

These are two appeals, consolidated by stipulation, from orders of the superior court instructing (1) the executor of the last will and testament of Mabel C. Carter, deceased, and (2) the trustee under the last will and testament of Fred M. Carter, deceased, to the effect that Mabel C. Carter did not by her will exercise the power of appointment given to her by the will of her predeceased husband, Fred M. Carter.

Appellants are five charities which are residuary legatees under the will of Mabel C. Carter but which are not mentioned in the will of Fred M. Carter.

Fred M. Carter and his wife, Mabel C. Carter, each executed wills on September 30, 1949, in the office of their attorney, W. W. Jacka, who had been practicing law since 1933 and prior to that time had been a trust officer for a bank. Mr. Carter later executed on codicil to his will. He died September 7, 1951. Mrs. Carter executed nine codicils to her will, and died April 21, 1954.

Mr. Carter's will was limited to his separate property and his share of the community property. It left his personal effects to his wife and the residue in two trusts, Trust A and Trust B. The entire income from each trust was to be paid to his wife during her lifetime. Trust A authorized his wife to add to it from her separate or community estate if she so wished, to make withdrawals from the corpus of Trust A, and

'(e) With respect to the said Trust A, my said wife is hereby granted a power to appoint the entire corpus thereof free of the Trust, in favor of her own estate or of any other beneficiary or beneficiaries whom my said wife may designate, which power shall be exercisable by my said wife alone, and in all events but shall be effective only if exercised by a valid will of my said wife.'

In the event of non-exercise of the power of appointment by Mrs. Carter, Mr. Carter's will provided that the residue of Trust A went into Trust B, which was bequeathed to 28 specific legatees with the residue to respondent, Church Divinity School of the Pacific.

Mrs. Cater did not transfer her estate into Trust A as was authorized in Mr. Carter's will. The will of Mrs. Carter does not refer in express terms to the power of appointment given her by her husband's will. In her original will paragraph fifth (n) read as follows: 'All the rest, residue and remainder of my estate, whether the same be real, personal or mixed and wheresoever the same may be situated, including any and all lapsed bequests under this Will, I give, devise and bequeath unto said Church Divinity School of the Pacific, Berkeley, California, without any restrictions as to the use thereof.'

By a codicil dated March 1, 1953, the foregoing paragraph was changed to read: 'All the rest, residue and remainder of my estate, whether the same be real, personal or mixed, and wheresoever the same may be situated, including any and all lapsed bequests under this will, I give, devise and bequeath equally to the following organizations and institutions:

'Shriners Hospitals for Crippled Children, San Francisco, California.

'Church Divinity School of the Pacific, Berkeley, California.

'Santa Clara County Heart Association.

'American Cancer Society, Santa Clara County Chapter.

'Crippled Children's Society of Santa Clara County, Inc.

'National Foundation for Infantile Paralysis, Inc., Santa Clara County Chapter.'

Over objection of appellants, the attorney who prepared the wills and several codicils was permitted to testify to conversations with the testator and testatrix relative to the terms of their wills and the codicil of March 1, 1953, and in particular to statements of Mrs. Carter ot the effect that she did not intend by her will or the codicil of March 1, 1953, to exercise her power of appointment under Trust A; also that he had advised Mr. and Mrs. Carter that the power of appointment could only be exercised by a will or codicil, (a) executed after the death of Mr. Carter, which (b) contained language expressly exercising the power of appointment.

Such testimony was admitted subject to a motion to strike. The trial judge did not expressly rule on the objection but in rendering his decision filed a memorandum opinion in which he stated: 'It is my opinion also that the clause in the will under consideration is not ambiguous and therefore Judge Jacka's testimony was not necessary.'

These questions are presented for our determination:

First: Did Mrs. Carter by her will exercise the power of appointment given to her by the will of her predeceased husband?

This question must be answered in the affirmative and is governed by these pertinent rules:

(1) Where the language of a will is clear and unambiguous it must be interpreted according to its ordinary meaning and legal import and the intention of the testator ascertained therefrom. (In re Estate of Willson, 171 Cal. 449, at page 456, 153 P. 927; In re Estate of Blake, 157 Cal. 448, at page 459, 108 [47 Cal.2d 204] P. 287; In re Estate of Avila, 85 Cal.App.2d 38, at page 40, 192 P.2d 64; In re Estate of Schaetzel, 44 Cal.App.2d 320, at page 324(1), 112 P.2d 324; Gore v. Bingaman, 29 Cal.App.2d 460, at page 470, 85 P.2d 172; In re Estate of Bourn, 25 Cal.App.2d 590, at page 602(9), 78 P.2d 193.)

(2) A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death, including property embraced in a power to devise. (Prob.Code, § 125; California Trust Co. v. Ott, 59 Cal.App.2d 715, at page 717(1), 140 P.2d 79; Childs v. Gross, 41 Cal.App.2d 680, at page 687, 107 P.2d 424; Harvard Trust Co. v. Frost (Mass.), 154 N.E. 863, at page 864(5); cf. Morffew v. San Francisco & S. R. R. Co., 107 Cal. 587, at page 590 et seq., 40 P. 810.)

In California Trust Co. v. Ott, supra, 59 Cal.App.2d at page 716, 140 P.2d at page 80, the following provision in a will was held to be the exercise by the donee of a power of appointment: "I give, devise and bequesth to my beloved wife, Phebe Ott, of Los Angeles, California, all the rest and residue of my estate, both real, personal and mixed, of every kind and nature, wherever the same may be situate, absolute, forever."

The court said 59 Cal.App.2d at page 717, 140 P.2d at page 80: 'The trial court found 'that said Francis S. Ott, Deceased, intended to and did exercise in his Last Will above set forth, his power of appointment.' We have reached the conclusion that the finding is supported. The will of Francis S. Ott purports, certainly, to devise all his real and personal property; the fifth subdivision clearly gives it that effect, following as it does the two specific bequests. Section 1330 of the Civil Code, as it read from the adoption of that code in 1872 until the section was repealed to emerge as a part of section 125, Probate Code, in 1931, provides: 'Real or personal property embraced in a power to devise, passes by a will purporting to devise all the real or personal property of the testator.' We entertain no doubt that the effect of section 1330 has not been affected by its reenactment in a new context and in new words (Prob.Code, sec. 2; Childs v. Gross, (1940) 41 Cal.App.2d 680, 687, 688 (107 P.2d 424)), but we do not need to so hold, for the section, being one of interpretation, continues to control in this case, where the will and trust agreement were both drawn before the section was rewritten into the Probate Code. (See Medical Finance Ass'n v. Wood, (1936) 20 Cal.App.2d Supp. 749, 750 (63 P.2d 1219), and cases cited.) By virtue of section 1330, therefore, the will was properly interpreted as an exercise of the power, to devise the trust property, which the trustor-husband had retained.'

The provision of the will of Mr. Ott in the cited case, which were held to constitute an exercise of his power of appointment, are almost identical with the provisions of Mrs. Carter's will in the instant case.

(3) Where a will is drawn by an experienced and competent lawyer it is presumed that legal terms embodied in the will are used in their legal sense. (In re Estate of Rutan, 119 Cal.App.2d 592, at page 598(2), 260 P.2d 111; In re Estate of Hollingsworth, 37 Cal.App.2d 432, at page 436(3), 99 P.2d 599; In re Estate of Bourn, supra, 25 Cal.App.2d at page 595(1), 78 P.2d 193; In re Estate of Northcutt, 16 Cal.2d 683, at page 689, 107 P.2d 607.)

Respondent claims that two paragraphs of Mrs. Carter's will indicate her intention not to exercise her power of appointment by the general bequest in paragraph fifth (n). First, respondent urges that in the fourth paragraph of her will relating to her bequest to her husband of all her estate if she predeceased him, after using other descriptive words, she said: 'and of which I have the right of testamentary disposition.' Respondent claims the quoted words do not appear in the general bequest in paragraph fifth (n) and therefore she did not intend to exercise her power of appointment by paragraph fifth (n).

This argument fails for the reason that paragraph fourth covers the situation of her death prior to that of her husband, at which time...