Estate of Basore

• Citation: 19 Cal.App.3d 623,96 Cal.Rptr. 874
• Court: California Court of Appeals
• Decision Date: 25 August 1971
• Parties: In re ESTATE of Helen L. BASORE, Deceased. PASADENA HOME FOR THE AGED, Appellant, v. Howard E. BASORE and James O. Ross, Respondents. Civ. 37602.

Page 874

96 Cal.Rptr. 874

19 Cal.App.3d 623

In re ESTATE of Helen L. BASORE, Deceased.

PASADENA HOME FOR THE AGED, Appellant, v. Howard E. BASORE and James O. Ross, Respondents.

Civ. 37602.

Court of Appeal, Second District, Division 4, California.

Aug. 25, 1971.

Hahn & Hahn, and William G. Hahn, Pasadena, for appellant.

Willard J. Stone, Pasadena, for respondent Howard E. Basore.

Herschel B. Green, and Jon Terence Green, Los Angeles, for respondent James O. Ros.

DUNN, Associate Justice.

This is an appeal from a decree determining heirship in, and distribution of, the estate of Helen L. Basore, deceased.

On February 14, 1950 Helen Basore, then unmarried, executed a will. After making two $500 bequests to her cousins, testatrix directed that the residue of the estate was to be impressed with a spendthrift trust for the maintenance of her brother, Howard E. Basore. Upon Howard's death the trust was to terminate and the residue was to be distributed in equal shares to the Casa Colina Hospital for Rehabilitative Medicine and the Pasadena Home for the Aged. ¹ The will further provided that any person who opposed or contested the whole or any portion thereof should receive nothing from the estate. In a codicil executed March 5, 1959 the testatrix revoked the two $500 bequests, but confirmed the will in all other respects.

On June 1, 1966 the testatrix married Matthew Stanley Preston. She died August 27, 1968, leaving an estate consisting of both separate property and community property. Testatrix's husband died September 24, 1968, thus surviving her by less than a month. Her will was admitted to probate October 1, 1968.

On May 29, 1969 Howard Basore, the brother, filed a 'petition for determination of heirship.' (Prob.Code § 1080.) Petitioner alleged that he was entitled not only to a life income from the trust in the residue, as provided in the will, but also to distribution of 'that portion of the residue * * * which exceeds the amount (one-third) distributable to charity' (Prob.Code §§ 41, 43). The petition concluded with a prayer that the court determine to whom and in what proportions the estate should be distributed.

On June 17, 1969 a statement of interest in the estate (Prob.Code § 1080) was filed by claimant James O. Ross as special administrator with general powers of the estate of decedent Matthew Preston. Ross claimed one-half the community property in testatrix's estate. In addition, on the ground that the will was executed before her marriage to Preston, and was not thereafter modified to provide for him, Ross also claimed that portion of her estate to which Preston was entitled under Probate Code § 70. ²

Statements of interest were filed also by Pasadena Home for the Aged and Casa Colina Hospital, the residuary beneficiaries of the remainder. These claimants alleged that petitioner Basore was not entitled to any portion of the residue because the charitable bequests were made by will executed more than six months before testatrix's death, and petitioner was not among the class of heirs entitled to have such bequests limited to one-third of the estate. Claimants further asserted that the allegations of the petition constituted opposition to or contest of a portion of the will within the meaning of the In terrorem clause.

A hearing was had on the petition and the statements of interest. Findings of fact and conclusions of law were signed and filed. The court found the following facts: testatrix's sole surviving heirs were her husband, Matthew Preston, and her brother, Howard Basore; the will and codicil were executed more than six months prior to her death, and before her marriage; they did not provide for her husband, nor did they mention him in such a way as to show an intention not to make such provision; by filing the petition to determine heirship, Howard Basore did not oppose or contest the whole or any part of the will within the meaning of the In terrorem clause; the estate consisted of separate property of the testatrix and community property of her and her husband. ³ From these findings, the court concluded: Howard Basore did not forfeit his right to take under the will, but he was not entitled to any portion of the charitable bequests; under Probate Code § 70, the will and codicil were revoked as to testatrix's surviving husband.

A decree was entered revoking the will and codicil as to Preston, and declaring that his right to succeed to testatrix's property (Prob.Code § 70) passed to claimant Ross as special administrator of Preston's estate. The decree further ordered that all the community property and half the separate property be distributed to Ross, and that the remainder of the separate property be distributed as provided in the will and codicil.

Pasadena Home for the Aged appeals from the decree. ⁴ (Code Civ.Proc § 904.1(k); Prob.Code § 1240.) Appellant contends: (1) Ross was not entitled to any portion of the estate because Probate Code § 70 creates a right of revocation which is personal to the surviving spouse, and as Preston died without exercising such right it could not thereafter be asserted by the representative of his estate; and (2) in filing his petition for determination of heirship, Howard Basore violated the In terrorem clause of the will, thereby forfeiting his interest in the estate.

I. Probate Code Section 70

It is undisputed that the testatrix married Preston after executing her will and codicil, and that she did not provide for or mention him in these testamentary documents, or in a marriage contract. ⁵ Therefore, when he survived her, section 70 operated to revoke the will as to him, regardless of what may have been the wishes of the testatrix. Estate of Duke, 41 Cal.2d 509, 512, 261 P.2d 235 (1953). He thereby succeeded to that share of her estate which he would have taken had she died intestate. Estate of Stewart, 69 Cal.2d 296, 298, 70 Cal.Rptr. 545, 444 P.2d 337 (1968); Estate of Tassi, 196 Cal.App.2d 494, 502, 16 Cal.Rptr. 616 (1961); Estate of Piatt, 81 Cal.App.2d 348, 349--350, 183 P.2d 919 (1947); 4 Witkin, Summary of Cal.Law (7th ed.) 3030, 'Wills and Probate' § 41.

As testatrix's surviving spouse, Preston succeeded to half the separate property (Prob.Code § 223) and all the community property in her estate (Prob.Code §§ 201, 70; Estate of Piatt, Supra, 81 Cal.App.2d at p. 350, 183 P.2d 919). Upon her death, title to such property automatically vested in him, and was perfected without the necessity of any act on his part. Prob.Code § 300; Estate of Berk, 196 Cal.App.2d 278, 282, 16 Cal.Rptr. 492 (1961); Estate of Meyer, 107 Cal.App.2d 799, 810, 238 P.2d 597 (1951). Hence, before Preston's death he held title to the property to which he had succeeded under section 70. After his death the representative of his estate was entitled to the possession of such property. Prob.Code §§ 571, 581.

Appellant contends section 70 does not have this effect because the word 'revoked' therein means 'revocable;' therefore, the surviving spouse has only a right of revocation; and as Preston did not exercise that right it was extinguished upon his death and did not pass to Ross, the representative of his estate.

In support of this contention, appellant relies upon decisions interpreting Probate Code §§ 41 ⁶ and 43, ⁷ which provide in essence that a testator may not bequeath more than one-third of his estate to charity if he leaves heirs of certain designated classes. It should be noted that neither of these statutes states that excessive charitable bequests are revoked, void or invalid as to such heirs. The apparent purpose of sections 41 and 43 is to strike a balance between the policy of favoring charities and the policy of protecting certain persons regarded by the law as having a preferred claim to the testator's bounty. See: Estate of Reardon, 243 Cal.App.2d 221, 228--229, 52 Cal.Rptr. 68 (1966). In view of these considerations, it has been held that excessive charitable bequests are not automatically void, but merely voidable at the instance of an aggrieved heir of a designated class. Estate of Goyette, 258 Cal.App.2d 768, 774, 66 Cal.Rptr. 103 (1968); Estate of Gutierrez, 220 Cal.App.2d 6, 13, 33 Cal.Rptr. 593 (1963); Estate of Adams, 164 Cal.App.2d 698, 701, 331 P.2d 149 (1958); Estate of Davison, 96 Cal.App.2d 263, 266, 215 P.2d 504 (1950). The right to object to such bequests is purely personal to the heir, and upon his death does not pass to his representative as part of his estate. Estate of Bunn, 33 Cal.2d 897, 900--901, 206 P.2d 635 (1949); Estate of Reardon, Supra, 243 Cal.App.2d at pp. 228--229, 52 Cal.Rptr. 68; Estate of Gutierrez, Supra, 220 Cal.App.2d at p. 9, 33 Cal.Rptr. 593.

We do not believe section 70 may be given a like interpretation. That statute expressly provides that a will is Revoked as to a surviving spouse. Its underlying policy is the 'social disfavor toward a testator's failure to provide for a surviving spouse.' Estate of Duke, Supra, 41 Cal.2d at p. 512, 261 P.2d at p. 237. Hence, unlike sections 41 and 43, neither the language nor the purpose of section 70 justifies the conclusion that a will is not revoked as to a surviving spouse and is merely revocable at his election.

Appellant argues it is illogical to allow Preston's estate to take his intestate share of his wife's property because this benefits only his legatees or heirs, whereas the purpose of section 70 is to benefit the surviving spouse, personally. In other words, appellant contends the spouse not only must survive the testator, but must survive long enough to take and enjoy the property to which he has succeeded. There is nothing in section 70 which supports this contention. The statute plainly provides that if a person marries after making a will and is survived by his spouse, the will is revoked as to the spouse unless the testator has provided for or mentioned him in the will or a marriage contract. If revocation is not to be effective unless...