Estate of Austin

CourtCalifornia Court of Appeals
Writing for the CourtANDREEN; GEO. A. BROWN, P. J., and HOPPER
Citation169 Cal.Rptr. 648,113 Cal.App.3d 167
PartiesEstate of Lucille Ann AUSTIN, Deceased. Betty GULDBERG, Intervenor and Appellant, v. SHRINE HOSPITAL FOR CRIPPLED CHILDREN, Intervenor and Respondent. Civ. 5274.
Decision Date11 December 1980

Page 648

169 Cal.Rptr. 648
113 Cal.App.3d 167
Estate of Lucille Ann AUSTIN, Deceased.
Betty GULDBERG, Intervenor and Appellant,
v.
SHRINE HOSPITAL FOR CRIPPLED CHILDREN, Intervenor and Respondent.
Civ. 5274.
Court of Appeal, Fifth District, California.
Dec. 11, 1980.

[113 Cal.App.3d 169]

Page 649

Paul A. Ginsburg, Torrance, for intervenor and appellant.

Stephen Eyherabide and Peter W. Beckman, King, Eyherabide, Friedman, Robinson & Pearl, Bakersfield, for intervenor and respondent.

OPINION

ANDREEN, Associate Justice.

The testatrix, Lucille Ann Austin, executed her will on March 9, 1977. Two specific bequests were made to a friend, Betty Guldberg, who is appellant herein. The first bequest was an oil portrait of the testatrix' mother and the other was as follows:

"4(L) The promissory note which I own and hold, made by GARY GRENZ, together with the deed of trust or mortgage securing said promissory note, I give to my friend, BETTY GULDBERG; providing that in the event BETTY shall predecease me or shall not survive distribution of my estate, then in that event said promissory note, together with the securing deed of trust, I give to BETTY's mother, DOROTHY GULDBERG, and should DOROTHY likewise predecease me or not survive the distribution of my estate, then such promissory note, together with the securing deed of trust, I give to the heirs of DOROTHY GULDBERG by right of representation."

The will is somewhat unique, in that it contains nine separate legacies ranging from $2,000 to $15,000 to individuals and organizations. In addition, there are three bequests; the two mentioned above and a dog. The remainder of the estate is given to the respondent Shrine Hospital for Crippled Children, which is also the beneficiary of a $5,000 legacy.

The case is before us because the Grenz note given to Betty Guldberg was paid in full on July 1, 1977, about four months after the will was [113 Cal.App.3d 170] executed. The payoff was $17,065.88 and was made contemporaneous with the sale of the property which was the underlying security. The note did not include a due on sale clause.

Five days after the payoff, the note proceeds were placed in a savings account which at that time had a balance of

Page 650

$7,727.67 (plus a small amount of accrued but unposted interest).

Thereafter, on August 9, 1977, the testatrix withdrew $20,000 from the account and loaned it to the Inmans. She received in return a promissory note secured by a deed of trust. The note was due in six months.

On January 14, 1978, about 10 months after the will was executed, the testatrix died without having changed her will.

The Inman note was paid off in full shortly thereafter, and the proceeds rest in an estate savings account.

The short trial had no testimony as to extrinsic evidence of the testatrix' intent.

The court below held that the legacy was specific and adeemed, so that it fell into the residue of the estate and thus went to the respondent hospital.

The scope of our review is delineated in Estate of Russell (1968) 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353. We are not bound by the trial court's construction of the will since there is no extrinsic evidence which is in conflict.

"The intention of the testatrix should be carried out as nearly as possible, and this is the basic rule of interpretation, to which all other yield...." (7 Witkin, Summary of Cal.Law (8th ed. 1974) Wills and Probate, § 159, p. 5674.)

The parties have cited numerous authorities which purport to assist one side or the other. We will discuss each of them.

The respondent hospital relies on Estate of Calori (1962) 209 Cal.App.2d 711, 26 Cal.Rptr. 281. The case is readily distinguishable. The testatrix bequeathed a promissory note secured by real property to appellant. [113 Cal.App.3d 171] There was no evidence as to the terms of the note, whether it was payable in installments or in a lump sum and whether the consent of the testatrix to its payment in full was required or given. There was no evidence identifying the cash as part of the estate at date of death. That is, the funds were not traceable into an account or another promissory note.

The trial court's finding of ademption was affirmed. The reviewing court found that there was nothing in the case to show that the bequest was general rather than specific. Of assistance to respondent here is the statement by the court that: "It is difficult to regard full payment of the note as a mere change in form ...." (Id., at p. 713, 26 Cal.Rptr. 281.)

Estate of Calori has rested on the shelves since 1962 without benefit of citation, except in Estate of Mason (1965) 62 Cal.2d 213, 42 Cal.Rptr. 13, 397 P.2d 1005. In the latter no ademption was found.

Respondent cites Estate of Peyton (1956) 143 Cal.App.2d 379, 299 P.2d 897. However, that too is distinguishable. In Peyton, the testator voluntarily sold his fractional interest in the land which was the subject of a specific bequest to his sons. In the case at bench, there was no voluntary sale.

Finally, respondent cites Estate of McLaughlin (1929) 97 Cal.App. 481, 275 P. 874 for the fact that if proceeds are commingled there is an ademption. However, in the instant case there was but one deposit into and one withdrawal from the account, so tracing is easy. (Hicks v. Hicks (1962) 211 Cal.App.2d 144, 27 Cal.Rptr. 307.)

We turn to an examination of appellant's cases.

Estate of Mason, supra, 62 Cal.2d 213, 42 Cal.Rptr. 13, 397 P.2d 1005 is distinguishable. The testatrix devised her home to appellant. Several years later, she became mentally incompetent and a guardian was appointed of her estate which sold the home and used all but $556.66 of the proceeds thereof for her support. The trial court held that there was a partial ademption to the extent that the funds had been...

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6 practice notes
  • Merrill v. Wimmer, No. 2-1282A424
    • United States
    • Indiana Court of Appeals of Indiana
    • September 13, 1983
    ...293 Ala. 616, 308 So.2d 692), California (Estate of McKenna, (1981) 118 Cal.App.3d 66, 174 Cal.Rptr. 84; Estate of Austin, (1980) 113 Cal.App.3d 167, 169 Cal.Rptr. 648), Colorado (Meier v. Denver United States National Bank, (1967) 164 Colo. 25, 431 P.2d 1019), Florida (In re Rogers' Estate......
  • Estate of Simoncini, No. A047608
    • United States
    • California Court of Appeals
    • April 29, 1991
    ...889] Prob.Code, § 6140, subd. (a); Estate of Edwards (1988) 203 Cal.App.3d 1366, 1371, 250 Cal.Rptr. 779; Estate of Austin (1980) 113 Cal.App.3d 167, 173, 169 Cal.Rptr. 648; Estate of Newmark (1977) 67 Cal.App.3d 350, 356-359, 136 Cal.Rptr. 628; 12 Witkin, Summary of Cal.Law (9th ed. 1990) ......
  • Frahm v. Rokus, B244354
    • United States
    • California Court of Appeals
    • September 5, 2013
    ...absence of proof that the testator intended that the gift fail." (Estate of Mason, supra, 62 Cal.2d at p. 215; Estate of Austin (1980) 113 Cal.App.3d 167, 174.) According to the Court of Appeal for the Fifth Appellate District, "In determining whether the change is in form only, California ......
  • Estate of Worthy, No. F009292
    • United States
    • California Court of Appeals
    • October 28, 1988
    ...it. As a result, the judicial "intention theory" of ademption could be applied. Citing the California case of Estate of Austin (1980) 113 Cal.App.3d 167, 169 Cal.Rptr. 648 as instructive on the relevance of [205 Cal.App.3d 769] intent, the court reversed the order of ademption because the t......
  • Request a trial to view additional results
6 cases
  • Merrill v. Wimmer, No. 2-1282A424
    • United States
    • Indiana Court of Appeals of Indiana
    • September 13, 1983
    ...293 Ala. 616, 308 So.2d 692), California (Estate of McKenna, (1981) 118 Cal.App.3d 66, 174 Cal.Rptr. 84; Estate of Austin, (1980) 113 Cal.App.3d 167, 169 Cal.Rptr. 648), Colorado (Meier v. Denver United States National Bank, (1967) 164 Colo. 25, 431 P.2d 1019), Florida (In re Rogers' Estate......
  • Estate of Simoncini, No. A047608
    • United States
    • California Court of Appeals
    • April 29, 1991
    ...889] Prob.Code, § 6140, subd. (a); Estate of Edwards (1988) 203 Cal.App.3d 1366, 1371, 250 Cal.Rptr. 779; Estate of Austin (1980) 113 Cal.App.3d 167, 173, 169 Cal.Rptr. 648; Estate of Newmark (1977) 67 Cal.App.3d 350, 356-359, 136 Cal.Rptr. 628; 12 Witkin, Summary of Cal.Law (9th ed. 1990) ......
  • Frahm v. Rokus, B244354
    • United States
    • California Court of Appeals
    • September 5, 2013
    ...absence of proof that the testator intended that the gift fail." (Estate of Mason, supra, 62 Cal.2d at p. 215; Estate of Austin (1980) 113 Cal.App.3d 167, 174.) According to the Court of Appeal for the Fifth Appellate District, "In determining whether the change is in form only, California ......
  • Estate of Worthy, No. F009292
    • United States
    • California Court of Appeals
    • October 28, 1988
    ...it. As a result, the judicial "intention theory" of ademption could be applied. Citing the California case of Estate of Austin (1980) 113 Cal.App.3d 167, 169 Cal.Rptr. 648 as instructive on the relevance of [205 Cal.App.3d 769] intent, the court reversed the order of ademption because the t......
  • Request a trial to view additional results

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