Estate of Patmore, In re

• Decision Date: 10 May 1956
• Citation: 141 Cal.App.2d 416,296 P.2d 863
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Bessle P. Howard PATMORE, also known as Bessie P. Howard and Mrs. Frank Patmore, Deceased. Frank T. PATMORE, Contestant and Appellant, v. Hattle H. MacKECHNIE, Petitioner and Respondent. Civ. 21518.

Page 863

296 P.2d 863

141 Cal.App.2d 416

In the Matter of the ESTATE of Bessle P. Howard PATMORE, also known as Bessie P. Howard and Mrs. Frank Patmore, Deceased.

Frank T. PATMORE, Contestant and Appellant, v. Hattle H. MacKECHNIE, Petitioner and Respondent.

Civ. 21518.

District Court of Appeal, Second District, Division 3, California.

May 10, 1956.

Hearing Denied July 5, 1956.

Rafter & Fredricks, Hermosa Beach, for appellant.

Emil H. Koehl, Hollywood, for respondent.

VALLEE, Justice.

Appeal from an order settling the final account of an executrix, a final decree of distribution, and an order denying a renewal of a family allowance.

Bessie Patmore died testate on February 26, 1953, a resident of California. She left surviving her husband Frank T. Patmore, appellant, and her sister Hattie H. MacKechnie, respondent and executrix of her will. Her estate was her separate property and consists of real and personal property in California, Kansas, and Oklahoma. The will bequeathed a few items of personal property and $10,000 cash to appellant; bequeathed certain stocks to respondent in trust to pay the income to appellant for life or until remarriage, with remainder to respondent; and bequeathed and devised the residue to respondent. The will was admitted to probate and domiciliary administration was begun in California. It was also admitted to probate and ancillary administration was begun in Kansas. We are not concerned with the estate in Oklahoma. During the course of administration in California the executrix received $21,659.72 from the ancillary administration in Kansas consisting of oil royalties, lease rentals, proceeds from the sale of crops and a right of way, and paid taxes on Kansas land.

Respondent filed her second and final account and petitioned for final distribution of the California estate. Appellant filed objections to the account and to the petition for final distribution and a petition for renewal of a family allowance. He averred that he had theretofore filed in the probate court of Barton County, Kansas, in which the ancillary administration was being had, an election to take as the surviving husband under the laws of that state and not under the will; '[t]hat without prejudice to his rights to take under the Will in California, in the event that for any reason he should not be entitled to distribution under the laws of Kansas, objector hereby declines to accept distribution under the Will at this time, and upon distribution to him of one half the real property in Kansas your objector will file with this Court an election not to accept benefits under said Will'; that the final account, in purporting to show estate receipts, is defective in that it was impossible to determine therefrom which of the receipts arose from rents or royalties from real property located in Kansas and that the petition failed to request permission to pay half of the receipts from Kansas real estate to appellant. The court overruled the objection, denied renewal of the family allowance, settled the account, and ordered distribution in accord with the will.

The assignment of error is that the decree of distribution is erroneous in failing to recognize the Kansas election; that it is premature in decreeing distribution prior to closing of the administration in Kansas; that its effect is to decide the title to land in Kansas which is governed by the law of Kansas; and that it is erroneous in approving the commingling of Kansas assets which are realty with California assets and ordering distribution of such Kansas assets to respondent.

A fundamental principal of law universally recognized is that realty is exclusively subject to the lex loci rei sitae--to the law of the state within which it is situated. Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 206, 92 P. 184; In re Estate of Lund, 26 Cal.2d 472, 477, 159 P.2d 643, 162 A.L.R. 606; 21 Am.Jur. 861, § 874. See Civ.Code, § 755. Election with respect to realty is governed by the law of the state where the land is located. 69 C.J. 1091, § 2332. This necessarily includes the proposition that the question whether appellant has the right to take Kansas realty against the will must be determined by the law of Kansas. Under the Probate Code of Kansas appellant had the right to elect whether he would take under the will or take what he in entitled to by the Kansas law of intestate succession. Gen.Stat.Kan. §§ 59-603, 59-2233. The Probate Code of Kansas expressly provides that if the terms of the will are not applicable, realty shall be distributed according to the law of that state. Gen.Stat.Kan. § 59-802. A surviving husband who elects to take against the will takes half of the realty under that law. Gen.Stat.Kan., § 59-505.

Acceptance by the surviving spouse of the provisions of the will, or an election to take under the will in the state of the decedent's domicile, is binding elsewhere in the absence of a statute to the contrary; and such spouse may not elsewhere claim rights against the will. One who accepts a beneficial interest under a will thereby adopts the whole will and renounces every right or claim that is inconsistent with the will. In re Estate or Moore, 62 Cal.App. 265, 270, 216 P. 981; Martin v. Battey, 87 Kan. 582, 125 P. 88, Ann.Cas.1914A, 440. ¹ He cannot accept the provisions of the will in one state and renounce them in another. In such a case one may not eat his cake and yet have it; he cannot hold a bequest or devise with one hand and shove it away with the other. In other words, should appellant accept the property distributed to him by the decree of distribution appealed from, he would be precluded from taking against the will in Kansas. It was expressly so held in Martin v. Battey, 87 Kan. 582, 125 P. 88, Ann.Cas.1914A, 440. In that case a wife domiciled in Illinois died there owning lands in that state and in Kansas. She left a will giving her husband a life estate in all of her property. The will was admitted to probate in Illinois and in Kansas. In Illinois the husband elected to take under the will. No election was made in Kansas. The question before the Supreme Court of Kansas was whether the Illinois election was binding in Kansas--whether a surviving husband can claim under the will in one jurisdiction and against it in another. After an exhaustive review of the authorities, the court held that the election to take under the will in Illinois was equally effectual in Kansas. In Brooks v. Carson, 166 Kan. 194, 200 P.2d 280, a widow was the sole beneficiary in her husband's will. He died a resident of Massachusetts, owning realty in Kansas. The law of Massachusetts required the widow to elect if she desired to take under of law rather than under the will. The law of Kansas required that she elect if she chose to take under the will rather than under the law. She made no election. Holding that the widow took under the will in Kansas, the court stated, 200 P.2d 283:

'As a matter of fact, if she could by filing her election to take under the will in Kansas, take it here, and by not so filing in Massachusetts take under it in Massachusetts the same reasoning would allow her to take under the will in one state and under the law in another. Such inconsistent position may not be taken. See 11 Am.Jur, p. 349, where the rule is stated as follows: 'The acceptance by the party entitled to make the election of the provisions of a will or an election to take under the will in the state of the decedent's domicil is binding everywhere.''

See, to the same effect, In re Randolph's Estate, 175 Kan. 685, 266 P.2d 315.

In California a husband has no interest in the separate property of the wife, and a widower is not put to an election by a bequest or devise to him of the separate property of the wife unless the will is so drawn as to make an election necessary. There is nothing in the will here which puts appellant to an election. As to separate property, he stands on the same footing as any other beneficiary. In Estate of Arms, 186 Cal. 554, 565, 199 P. 1053. Cf. Cook v. Cook, 17 Cal.2d 639, 651, 111 P.2d 322; In re Estate of Boyd, 95 Cal.App.2d 44, 45, 212 P.2d 17. But any person may refuse to accept a provision for him in a will so long as the rights of third parties are not involved, and of course a widower may do so. In re Estate of Arms, supra, 186 Cal. 565, 199 P. 1057; Estate of Kalt, 16 Cal.2d 807, 814, 108 P.2d 401, 133 A.L.R. 1424. 'A legatee or devisee, under a will, is not bound to accept, but may renounce or disclaim his right under it, if he has not already accepted; and the renunciation or disclaimer relates back to the time the gift was made and no estate vests in him.' In re Estate of Meyer, 107 Cal.App.2d 799, 810, 238 P.2d 597, 605.

Renunciation of a foreign will in a foreign jurisdiction is given effect by comity in the state where the renouncing party has his domicile. 69 C.J. 1092, § 2332. In Whalley v. Lawrence's Estate, 93 Vt. 424, 108 A. 387, the testator, domiciled in Vermont, left property in that state and in California. The will, admitted to probate in both states, made bequests to charity in excess of the limit allowed by the California law. The California court distributed the excess to the heirs who were given specific legacies by the will and remitted the balance of the estate to the Vermont executor. The heirs received the amounts decreed by the California court and asked the Vermont court for the specific legacies. It was held that the heirs, having accepted the sums decreed to them by the California court, thereby elected to take against the will and that such election would be given effect in Vermont, the state of the domicile.

Application of what we have said to the case at bar compels the conclusion that it was error to render the decree distributing to appellant and to respondent in trust the property bequeathed to appellant and for his benefit. There is no dispute about the fact that appellant...