Estate of Kazian

• Decision Date: 30 June 1976
• Citation: 59 Cal.App.3d 797,130 Cal.Rptr. 908
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Angelen KAZIAN, also known as Angelen Gendian, Deceased. SECURITY PACIFIC NATIONAL BANK, as Executor and Rose Ketchoyian, as Trustee of the Testamentary Trust, Respondents, v. Onig KAZIAN, also known as Bill Kazian, Appellant. Civ. 47338.

Page 908

130 Cal.Rptr. 908

59 Cal.App.3d 797

In the Matter of the ESTATE of Angelen KAZIAN, also known as Angelen Gendian,

Deceased. SECURITY PACIFIC NATIONAL BANK, as Executor and Rose Ketchoyian, as Trustee of the Testamentary Trust, Respondents, v. Onig KAZIAN, also known as Bill Kazian, Appellant.

Civ. 47338.

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

June 30, 1976.

[59 Cal.App.3d 799] Jack Altman, Reseda, for appellant.

Harlean M. Carroll and Volney F. Morin, Hollywood, and Gilbert Klein, Los Angeles, for respondents.

KAUS, Presiding Justice.

Petitioner, executor of the will of Angelen Gendian Kazian filed a petition for a

decree determining the interests in decedent's estate. Its purpose was to determine whether decedent's surviving husband, Onig (Bill) Kazian, had forfeited his interest in the estate under a no-contest clause in the will. The probate court found that Kazian had contested decedent's disposition of her estate and that he was therefore entitled to take only the sum of $1 under the will. Kazian appeals.

FACTS

Decedent married Kazian in October 1954, sometime after her first husband died. At the time, she owned property worth about $300,000. ¹ She died in June 1969, leaving an estate of $1,300,000.

Decedent left a will which provided, as relevant:

First, she declared: '(A)ll property in which I have an interest or which now stands in my name, or my former name, . . . is my sole and separate property, having been owned by me prior to my marriage to BILL KAZIAN, or having been acquired subsequent to my marriage to him, but from the proceeds of property owned by me prior to said marriage.'

Second, she bequeathed Kazian the sum of $25,000 plus shares of stock worth about $35,000.

Third, she left the bulk of her estate in trust to her three children from her former marriage, and to her grandchildren.

Fourth, she provided that if any 'beneficiary under this Will, . . . shall contest it, or any of its parts or provisions, then such person shall receive the sum of One Dollar ($1.00) only, in lieu of all interest in this estate or under my Will.'

The will ² was filed for probate in July 1969. In April 1970, Kazian filed a 'Complaint to Establish Community Interest and for Money,' in which he alleged the existence of the will and that 'all of said property in said estate is in fact community property and the plaintiff is entitled to one-half of all of the assets of the estate.'

In February 1973, after a court trial, judgment was entered against Kazian. The court found, in brief, 'that no community property existed between (Kazian) and the Decedent, . . .'

The executor then filed this proceeding. The superior court found that Kazian's action 'in filing the aforesaid legal proceedings against the Executor of the within estate, was a contest of the decedent's Will under the provisions' in which she declared that all property in her name was her separate property.

DISCUSSION

Kazian contends that the action filed by him 'to Establish Community Interest and for Money' was not such a contest of the will or of 'any of its parts or provisions' that should result in the application of the no-contest clause. We disagree.

Estate of Hite, 155 Cal. 436, 439, 101 P. 443, 444, established as far as this state is concerned, 'that a condition such as (a no-contest clause), not only does no violence to public policy, but meets with the approval of that policy.'

Hite also held that in interpreting the reach of no-contest clauses, the 'basic question for determination is the meaning of the word (contest) As employed by the testator, and that determination is to be arrived at from a consideration of his purpose, and the end which he sought to attain.' (Id. at p. 442, 101 P. at p. 445. Italics in original.) ³ Whether there has been a contest within the meaning of the language used in a particular no-contest clause is determined according to the circumstances of the particular case. (Estate of Fuller, 143 Cal.App.2d 820, 824, 300 P.2d 342; see also Estate of Basore, 19 Cal.App.3d 623, 631, 96 Cal.Rptr. 874; Estate of Dow, 149 Cal.App.2d 47, 53, 308 P.2d 475.) Thus the answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purpose that the testatrix sought to attain by the provisions of her will. (Estate of Hite, supra, 155 Cal. 436, 442, 101 P. 443.)

The word 'contest' may mean 'any legal proceeding which is designed to result in the thwarting of the testator's wishes as expressed in his will.' (Estate of Howard, 68 Cal.App.2d 9, 11, 155 P.2d 841, 842.)

We recognize that while no-contest clauses 'are to be given effect according to the intent of the testator, yet it is also the rule . . . that such a provision--being by way of forfeiture and condition subsequent--is to be strictly construed and not extended beyond what was plainly the testator's intent.' (Estate of Bergland, 180 Cal. 629, 633, 182 P. 277, 279; see also Estate of Miller, 230 Cal.App.2d 888, 901--902, 41 Cal.Rptr. 410, and cases collected.) By the same token, however, we must not rewrite the testatrix' will in such a way as to immunize legal proceedings plainly intended to frustrate her unequivocally expressed intent from the reach of the no-contest clause.

Applying the basic test of Hite, there can be no doubt that the action filed by Kazian was a proceeding intended to thwart the decedent's wishes as expressed in her will to which the no-contest clause contained in that will properly applied. ⁴

Decedent specifically declared that all property in her name was her sole and separate property--property worth, as noted, about $1,300,000. She then bequeathed Kazian about $60,000. The bulk of the estate was to be held in a trust and distributed to decedent's children and grandchildren. Decedent's clear intent was to leave Kazian a relatively small percentage of the estate and to lavish her bounty on her children and grandchildren, the offspring of her first marriage.

The object of Kazian's action was totally contrary to this intent. He sought a judgment, the effect of which would have been to chop the estate in half. He was, of course, entitled to bring his separate action, but 'when a testator declares in his will that his several bequests are made upon the condition that the legatees acquiesce in the provisions, the courts, rightly hold that no legatee, without compliance with that condition, shall receive his bounty, or be put in a position to use it in the effort to thwart his expressed purposes.' (Estate of Hite, supra, 155 Cal. 436, 441, 101 P. 443, 445, quoting Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793.)

Cases relied on by Kazian do not call for a different result. In Colden v. Costello, supra, 50 Cal.App.2d 363, 122 P.2d 959, the widow filed a declaratory relief action in which she sought Inter alia, a declaration that the filing of certain proposed actions in the courts of California and Texas would not constitute a violation of the no-contest clause of the will. The trial court made four specific declarations, one of which was that the proposed suits would not violate a no-contest clause. Although this issue had been controverted at the trial level, the Court of Appeal expressly stated 'that it is not contended on the appeal that the prosecution of the separate declaratory relief actions would violate the will . . ..' (Ibid. at pp. 368--369, 122 P.2d at p. 963.) Whatever the underlying facts of Colden were, ⁵ the decision clearly has no precedential value in this case.

Nor does Estate of Dow, supra, 149 Cal.App.2d 47, 308 P.2d 475, aid Kazian. There the husband had made certain gifts of property before his death. In his will he declared that all of his property was his separate property. The widow then sued the executor and the donees, claiming that the husband's estate consisted of community property and seeking to set the gifts aside. The matter was eventually settled. Under the terms of the settlement to which the personal representative was a party, some of the gifts were returned to the estate, the widow dropped her claim that the estate consisted of community property, and all parties agreed that she could participate in the distribution of the estate under the will. In other words, it was part of the settlement agreement that the litigation commenced by the widow was not to be deemed a contest. The Court of Appeal affirmed a trial court finding that under the circumstances of that case the filing of the action that was later compromised was not a contest within the meaning of the no-contest clause in Mr. Dow's will. It found that the widow had never pursued her contention concerning the community character of the estate 'far enough to get a court determination but waived the contention and As a result of her action obtained considerable assets for the estate as well as for appellant.' (Ibid. at p. 54, 308 P.2d at p. 480. Italics added.) The court also pointed out that the widow's action, in effect, had been nothing but an action for declaratory relief to determine whether her husband's estate was separate or community property. ⁶

Kazian's attempt to bring himself within the law and the facts of Dow will not do. All that the decision stands for is that under the peculiar circumstances of that case, the abortive action by the widow was not a contest within the meaning of the clause in the particular will under consideration. The court relied heavily on the fact that so far from diminishing the estate, the widow's action had, in fact, increased its assets for the benefit of all beneficiaries, including Mrs. Dow's daughter, the appellant.

Kazian's efforts, on the other hand, if successful would have halved rather than enhanced the estate. To claim--as he does--that his action sought nothing but a 'construction' of the will is disingenuous. The testatrix' declaration that all of her property was her 'sole and separate property' needed no...