Dow's Estate, In re

• Decision Date: 11 March 1957
• Docket Number: No. 17055,17055
• Citation: 308 P.2d 475,149 Cal.App.2d 47
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Edgar Laurence DOW, alias, Deceased. Maxine Patricia HUTCHINSON, Appellant, v. Maxine B. DOW, individually and as Administratrix with the Will Annexed of the Estate of Edgar Laurence Dow, alias, deceased, Respondent.

Page 475

308 P.2d 475

149 Cal.App.2d 47

In the Matter of the ESTATE of Edgar Laurence DOW, alias, Deceased.

Maxine Patricia HUTCHINSON, Appellant, v. Maxine B. DOW, individually and as Administratrix with the Will Annexed of the Estate of Edgar Laurence Dow, alias, deceased, Respondent.

No. 17055.

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

March 11, 1957.

Rehearing Denied April 10, 1957.

Hearing Denied May 8, 1957.

Hutchinson & Quattrin, William A. White, San Francisco, for appellant.

Goldstein, Barceloux & Goldstein, San Francisco, for respondent.

BRAY, Justice.

Appellant has taken two appeals: (1) from certain portion of the decree of settlement of the third and the fourth and final accounts of respondent and of final distribution; (2) from certain portions of the order denying her petition for partial distribution. ¹

Questions Presented. ²

First appeal.

1. Did respondent, widow of the decedent, violate the no-contest clause of the will?

2. Alleged jurisdictional defects: (a) jury trial; (b) findings.

3. Had the 'Sutro' judgment outlawed?

4. Error in commissions and fees.

5. Alleged inadequacy of fees to appellant'sattorney.

6. The final account generally.

Second appeal.

Did the pendency of a proceeding to determine that Mrs. Dow had forfeited her interest in the estate justify denial of partial distribution to appellant?

First Appeal.

1. No-contest.

The will bequeathed to respondent wife certain personal property, and to testator's two sons by a former marriage certain articles of personal ornament. 'And I further declare that any and all securities or property that I have given or may give prior to may death to my wife or any one of my children evidenced by a transfer of such securities or property shall be conclusive evidence of their ownership, and shall not be considered a part of the Trust hereinafter created.

'Fourth: I herewith and hereby declare that all other property of every kind and character, and all the estate whereof I die possessed is separate property accumulated, owned and possessed by me prior to my present marriage, or is the increase, profits and accumulations that have been directly derived from such property, and the increase in value of securities owned by me or from the investment or reinvestment of my separate funds or property owned or possessed prior to my said marriage.'

It then states that since his marriage his only income other than that derived from his separate property has been his salary of $12,000 as president of River Farms Company of California and that the living expenses of himself and family have averaged approximately $25,000 per year. Testator devises and bequeaths to a trustee all of his estate of every description wherever situated 'and however held which is or may be subject to my testamentary disposition at the time of my death' (excepting the personal property bequests above mentioned). The will sets forth the power of the trustee and the terms of the trust, primarily that the income shall be used for the joint support and benefit of appellant and respondent, with a provision that his two sons would participate if the income exceeds a certain amount annually. So far as concerns the questions here, the trust was to terminate on January 1, 1952, at which time the trust estate was to go one-third to appellant, one-third to respondent and one-sixth to each of the two sons. The no-contest clause (paragraph twenty-first) reads in part as follows: 'I hereby declare, and it is my will, that if any of the beneficiaries herein named shall contest or question this my will or cause it to be contested or questioned in any court then, and in such event, I hereby revoke any devise or bequest herein made to such beneficiary or beneficiaries, and such beneficiary or beneficiaries' shall receive the sum of $1 each. There were many other provision in the will, which was a lengthy one. They will be referred to hereafter if material to the questions presented.

There are three acts of respondent which appellant contends violated this clause and constituted an election to take community or other statutory rights in lieu of the benefits of the will. 1. The so-called 'community property' action (Dow v. Dow, No. 233,370, San Francisco Superior Court). Mrs. Dow in 1932 sued the executor of the Dow estate, Edgar L. Dow, Jr., Marian F. Dow, his wife, Gerald H. Dow, and American Trust Company, claiming that the gifts to the sons, to Marian and to American Trust Company in trust for the sons, made prior to testator's death, and all of the property in the estate, were community property of herself and the decedent, to one-half of which plaintiff was entitled. The administrator of the estate ³ and Edgar filed answers, claiming that all of the property mentioned in the complaint was separate property of the decedent. The administrator alleged that it belonged to the estate. Edgar alleged that all such property as well as stocks and bonds in Edgar's name and in Sutro & Company and 3093 shares of River Farms Company of California stock, had been assigned by decedent to Edgar in trust, subject to an assignment thereof from Edgar to decedent to be used only in the event Edgar predeceased his father. ⁴ November 16, 1935, Mrs. Dow, Edgar and the administrator entered into a compromise agreement. ⁵ This agreement provided that (1) the Mayflower Mine be conveyed by Edgar to a trustee for the benefit in equal shares of Mrs. Dow, Edgar and the estate. (2) All parties release Edgar's trust. (3) A bank account resulting from a securities account in Edgar's name was released to the administrator. (4) The 3093 shares of River Farms stock was divided between Edgar and the administrator. (5) Other properties listed in the assignment were released to Edgar. (6) Edgar assign and cause Gerald to assign their interests in the estate to Mrs. Dow and appellant. (7) Judgment in the action to provide accordingly. The agreement further provided: 'Said first party, Maxine B. Dow, shall have the right to participate in the distribution of the Estate of Edgar L. Dow, deceased, in accord with the terms of the will of said deceased, and no objection of any kind shall be made to such participation.' Mrs. Dow agreed that she had no community interest in any of the assets or property of the estate and that all constituted decedent's separate property. The probate court granted the administrator permission to execute the agreement, also providing 'That Maxine B. Dow relinquish to the estate all claims to property therein on the ground that it is community property of her and the decedent herein and recognize that the same is the separate property of the decedent.' Judgment was entered in Dow v. Dow in accordance with the agreement. ⁶

2. March 2 and May 25, 1931, respectively, Mrs. Dow commenced actions against the administrator, referred to as the 'Sutro actions.' Both actions were based upon the same transaction and alleged facts. The first (San Francisco No. 226,192) was for the return of securities formerly in an account with Sutro & Company in Mrs. Dow's name. This action was never brought to trial, and in the decree of distribution herein the court found that because of the time element of more than 20 years, that action was 'aborted' and could not be 'considered for any purpose.' The second action (San Francisco No. 228,219) was to enforce a claim against the estate for the conversion of said securities by testator. judgment in favor of Mrs. Dow and against the estate for $12,822.32 plus interest was rendered.

3. Family allowance proceedings. Originally the estate was insolvent. A preinventory family allowance was granted, terminating December, 1931. By April 30, 1947, however, the estate had become solvent. On that day Mrs. Dow applied for a family allowance in the sum of $1,000 per month retroactive to December, 1931. Had the allowance been granted in the sum requested it would have amounted to considerably more than the then value of the estate. The court granted an allowance of $500 per month restricted to six months beginning July 1, 1947. No appeal followed. May 13, 1948, on petition therefor, Mrs. Dow was granted a family allowance of $500 per month commencing January 1, 1948, and continuing until the further order of the court. Appellant appealed. 91 Cal.App.2d 420, 205 P.2d 698. The order was affirmed. In 1953 appellant applied to the probate court for a termination of this allowance. She appealed from the order denying termination. 120 Cal.App.2d 296, 260 P.2d 970. The reviewing court ordered the allowance terminated as of the date the motion to terminate was made. On October 5, and on November 30, 1953, Mrs. Dow applied for further family allowances. Both applications were denied. The total amount received in family allowances by Mrs. Dow is $38,500.

The probate court expressly and independently found that the legal actions above mentioned were not in any way contests or actions contemplated under paragraph twenty-first of the will nor did they violate its terms, and that Mrs. Dow is entitled to inherit under the will. The court found that the 'community property action' resulted in 'three outstanding matters which clearly benefited' appellant and the estate: (a) the estate became owner of an additional 1,526 1/2 shares of River Farms having a book value of $75 per share; (b) the estate became the owner of a one-third interest in the Mayflower Mine, of the present value of $10,000; and (c) that Edgar and Gerald assigned to appellant and Mrs. Dow their right to a one-third share of the entire estate, and that neither of the sons has now any claim in the estate. The probate court found that the matter of family allowance being a statutory right, Mrs. Dow, by her various petitions for family allowance, had not violated paragraph twenty-first of the will.

While a testator is free to dispose of his property on whatever condition he wishes to impose so long...