Estate of Schreck

• Decision Date: 29 April 1975
• Citation: 121 Cal.Rptr. 218,47 Cal.App.3d 693
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of George William SCHRECK, Deceased. Edythe Leona CARNER, Appellant, v. Jean L. SCHRECK, Respondent. Civ. 45025.

Page 218

121 Cal.Rptr. 218

47 Cal.App.3d 693

In re ESTATE of George William SCHRECK, Deceased.

Edythe Leona CARNER, Appellant, v. Jean L. SCHRECK, Respondent.

Civ. 45025.

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

April 29, 1975.

Welsh & McGilvray and Polly Welsh McGilvray, Sacramento, for appellant.

Philip J. Murphy, Santa Barbara, for respondent.

COBEY, Associate Justice.

Claimant, Edythe Leona Carner, appeals from an order determining that the testamentary trustee is entitled to the distribution to it in trust of the estate of George William Schreck, consisting entirely of separate property, pursuant to the provision for such testamentary trust contained in the last will of Schreck, the testator. The appeal lies. (Prob.Code, § 1240.)

Under the testamentary trust provision the testator's second wife and widow will receive the net income of the trust during her lifetime or until her remarriage and then the trust estate will be paid over in equal shares to those of the testator's brothers and sisters then surviving.

Claimant is one of these remaindermen. She conends that the widow forfeited her limited life estate under the trust to the remaindermen by persuading the executor of the testator's last will to release to her, as surviving joint tenant, the remaining one-half interest in a 1969 Cadillac (this interest being valued in probate at $1300) and by obtaining the petition a court order setting apart to her as surviving spouse in fee simple, pursuant to Probate Code section 660, certain property of the testator's exempt from execution. This property consisted of the household furniture and furnishings and a Rolex wristwatch and was valued in probate in the aggregate at $2,387. The entire estate was so valued at approximately $166,000. ¹

Claimant asserts that the widow violated the provision of the will directing that the testator's tangible personalty be sold and the proceeds of such sales placed in the testamentary trust and that she also violated the In terrorem provision of the will which, by its express terms, is made applicable to anyone who 'seek(s) to succeed to any part of my estate except through this will . . ..' ² She also challenges the finding of fact of the trial court that at the time of the testator's death the Cadillac was owned by him and his surviving spouse as joint tenants. She claims that each of the spouses instead owned an equal undivided interest in the vehicle as shown in the first partial inventory filed in probate. ³

DISCUSSION

The question before us is whether the testator intended (see Prob.Code, § 101) to disinherit essentially his widow by means of the In terrorem provision in his will because she claimed as surviving joint tenant the remaining one-half interest in their automobile and because she petitioned the probate court successfully to set apart to her as surviving spouse certain personalty of the testator's as property exempt from execution. Claimant contends that this deviation in the distribution of the property of the testator's estate from the testamentary scheme embodied in his will of placing all of his property, directly or indirectly, ⁴ in a testamentary trust from which the widow would receive only the net income thereof during her lifetime or until her remarriage requires the application of the In terrorem forfeiture provision. She points to the fact that the testator stated near the outset of his will: 'I intend the provisions of this will to apply to and constitute the Sole provision for all my heirs at law.' (Emphasis added.)

We do not agree that the testator intended to forfeit to the remaindermen his widow's limited life estate by reason of her conduct at issue. The testator had been the executor of his first wife's last will. In his own will the testator exhibited a familiarity with probate procedures because he, there, expressly limited his widow to a family allowance of $500 a month of not over 18 months duration on pain of otherwise being totally disinherited. ⁵ If his implied intent had been, as claimant asserts, to put his widow to an election between, on the one hand, claiming her joint tenancy interest in the Cadillac and having certain of his exempt property set apart to her, and, on the other hand, simply taking her limited life estate under the testamentary trust, he would have provided for such an election in his will as expressly and as clearly as he did in regard to her exercise of her statutory right to a family allowance. (See Prob.Code, §§ 680, 681.)

Furthermore, the law is settled in this state that In terrorem provisions in a will must be strictly construed. (E.g., Estate of Basore, 19 Cal.App.3d 623, 630, 96 Cal.Rptr. 874) We think it clear that under such a strict construction the widow's challenged conduct did not come within the first clause of the provision at issue dealing with direct and indirect attacks upon the validity of the will or any part thereof. Moreover, her conduct did not come within the second clause as well relating to succession to any part of the testator's estate through his will. The word 'succession' is defined in Probate Code, section 200, as the acquisition of title to the property of one who dies intestate. Under Civil Code, section 1000, property may be acquired,...