Estate of Hermon

• Decision Date: 09 November 1995
• Docket Number: No. A069050,A069050
• Citation: 46 Cal.Rptr.2d 577,39 Cal.App.4th 1525
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8668, 95 Daily Journal D.A.R. 14,977 Estate of John R. HERMON, Deceased. Curtis HERMON, Contestant and Appellant, v. Fernando "Rick" URTEAGO, et al., Claimants and Respondents.

Page 577

46 Cal.Rptr.2d 577

39 Cal.App.4th 1525, 95 Cal. Daily Op. Serv. 8668,

95 Daily Journal D.A.R. 14,977

Estate of John R. HERMON, Deceased.

Curtis HERMON, Contestant and Appellant, v. Fernando "Rick" URTEAGO, et al., Claimants and Respondents.

No. A069050.

Court of Appeal, First District, Division 5, California.

Nov. 9, 1995.

Review Denied Feb. 15, 1996.

James R. Benoit, Santa Rosa, for contestant/appellant.

William M. Andrews, Barry L. Adams, Santa Rosa, for claimants/respondents.

KING, Associate Justice.

In this case we hold that provisions in a decedent's will, which was executed during a marriage that had been dissolved prior to his death, granting certain bequests in the event his spouse predeceased him to "my children and my spouse's children" and "my issue and my spouse's issue" fail as to "my spouse's children" and "my spouse's issue," absent an expression of intent that the bequest was to survive a dissolution of the marriage.

The trial court was called upon to construe the will of John R. Hermon (testator), who was married at the time he executed the will but whose marriage was dissolved prior to his death. It is clear that after the dissolution, by operation of Probate Code section 6122, ¹ all the testamentary bequests made to the testator's former spouse were revoked. Specifically, the question in this case involves the status of the testator's bequests to "my spouse's children" and "my spouse's issue." The testator's natural child, Curtis Hermon, appeals from the trial court's ruling that, notwithstanding the marital dissolution, he is to share his testamentary gifts with the former spouse's four children. We reverse.

Facts

The case was tried in the superior court upon a written stipulation of facts. John R. Hermon died on May 8, 1993. His will, dated March 6, 1974, was admitted to probate. At the time the testator executed his will he was married to Suzannne Hermon. She had four children. The Hermons' marriage was dissolved effective December 31, 1986. The testator was not married at the time of his death. The will lacks any specific provision with respect to marital dissolution, and there is no reason to believe he gave any thought to that possibility at the time of execution. The will remained in its original form, unrevised prior to the testator's death.

Curtis Hermon, the testator's sole living natural child, filed a petition under section 11700 requesting the court to interpret and construe the provisions of his father's will. In the introductory portion of the will, it is stated, "I am married to SUZANNE HERMON and all references in this Will to 'my spouse' are to her." Immediately following is a provision stating: "My spouse has four (4) children now living whose names are: FERNANDO URTEAGO, JOHN J. URTEAGO, INEZ URTEAGO, [and] SANDY JOHANSON." The dispositive provisions of the will cause property not the subject of a specific bequest to pass to decedent's spouse if she survives him for 30 days and if not to "my children and my spouse's children who survive me for that period." The residuary clause provides for the residue of the estate to pass to decedent's spouse if she survives him for 180 days and if not to "my issue and my spouse's issue who survive me for that period."

The issue presented involves the construction of this will in light of the fact that the testator's marriage to Suzanne Hermon was dissolved in 1986. It also involves the revocatory effect of section 6122, which is modeled after Uniform Probate Code section 2-508. Section 6122 provides, in pertinent part: "[I]f after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes ... [p] (a)(1) Any disposition or appointment of property made by the will to the former spouse.... [p] (c)(1) Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator." (See also Estate of Reeves (1991) 233 Cal.App.3d 651, 658, 284 Cal.Rptr. 650.) The operation of this type of statute has been graphically described as follows: "The effect is that upon divorce the testator's spouse 'dies' for the purposes of implementing the other provisions of the will. Thus, each pertinent provision of the will is to be construed as though the divorced spouse predeceased the testator." (In re Estate of Beare (1993) 880 S.W.2d 562, 566.)

The parties' principal arguments here and below can be summarized as follows: Decedent's former stepchildren (respondents) argue that section 6122 has the effect of revoking only those provisions of the will in favor of the former spouse (their mother) and that the statute should not be construed as having the effect of nullifying any portion of the will in favor of a former spouse's children. Respondents point out that if the Legislature desired such an effect, it would have so specified in the applicable statute. Instead "Section 6122 does not eliminate testamentary provisions for lineal descendants of a former spouse or a deceased spouse. The section is utterly silent as to lineal descendants."

In response, decedent's natural child (appellant) expresses the view that section 6122 is only peripherally involved in this dispute. Instead, his position is based on the alleged "ambiguity of the language of this specific will in light of the extrinsic fact of divorce." Appellant characterizes the bequests to "my children," "my issue," "my spouse's children," and "my spouse's issue" as class gifts with class membership being determined at the time of the testator's death. At the time of the testator's death, appellant was the deceased's sole surviving child and clearly a member of the class. However, in light of the earlier dissolution, respondents no longer fit the description of "my spouse's children" or "my spouse's issue"; consequently appellant succeeds to an undivided portion of the estate. Appellant points out that this result is consistent with rules of construction favoring "blood" relative as against the "four strangers who are the children of the testator's former wife." (See Wells Fargo Bank v. Title Ins. & Trust Co. (1971) 22 Cal.App.3d 295, 302, 99 Cal.Rptr. 464; 12 Witkin, Summary of Cal.Law (9th ed. 1990) Wills and Probate, § 244.)

The trial court rendered judgment finding, among other things, that the will was not ambiguous. The court concluded that by operation of section 6122, the provisions in favor of the testator's former spouse were revoked allowing the property to pass as if the former spouse predeceased the testator. The trial court further held that since the testator had manifested a clear intention that his children and his former wife's children were to share in his estate if for any reason his spouse could not, the estate should be distributed as follows: a four-fifths share to respondents, the children of Suzanne Hermon, and a one-fifth share to appellant, decedent's child. This appeal followed. ²

Standard of Review

Neither party introduced any extrinsic evidence concerning the meaning of the language used by the testator. Consequently, it was solely a judicial function to construe the will and it becomes our function as a reviewing court to make an independent determination of the meaning of the will. (Burch v. George (1994) 7 Cal.4th 246, 254, 27 Cal.Rptr.2d 165, 866 P.2d 92; Parsons v Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Russell (1968) 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353.)

Discussion

The issue presented here is one of first impression in this jurisdiction. Respondents direct our attention to a line of out-of-state cases where the operation of "revocation by dissolution" statutes similar to section 6122 triggered a gift in favor of the relatives of the former spouse who, after the dissolution, were no longer relatives of the testator. (See, e.g., In re Estate of Shelton (1974) 19 Ill.App.3d 542, 311 N.E.2d 780 (upholding gift over to ex-wife's son in event she predeceased); In re Estate of Zimmerman (1975) 28 Ill.App.3d 107, 328 N.E.2d 199 (upholding gift over to testator's two children and ex-wife's two children in event wife predeceased); Russell v. Estate of Russell (1975) 216 Kan. 730, 534 P.2d 261 (upholding gift of $1 to testator's sons and rest of estate to adopted son in event wife predeceases).

While respondents' claim these cases are "directly on point" hard and fast rules are difficult to come by in this area. No two wills are exactly alike and few are sufficiently similar in the wording of dispository provisions so that a decision interpreting one is rarely any great help in interpreting another. (Estate of Newmark (1977) 67 Cal.App.3d 350, 355, 136 Cal.Rptr. 628). This case is no exception. As appellant points out, there is a technical difference between the survivorship language of the governing instruments in the cited cases and the bequests to "my spouse's children" and "my spouse's issue" as employed in the instant case. In the cited cases, the testamentary gifts were made to beneficiaries identified by name. However, in the will now under consideration, the beneficiaries were described as a class, by their relationship to the testator. Thus, appellant argues, by employing such language granting bequests to "my spouse's children," and "my spouse's issue" the testator created "class gifts" and conditioned the gifts upon members of the class meeting that description at the...