Fuller's Estate, In re

• Decision Date: 15 August 1956
• Citation: 300 P.2d 342,143 Cal.App.2d 820
• Court: California Court of Appeals Court of Appeals
• Parties: In re FULLER'S ESTATE. In the Matter of the Estate of Alice I. FULLER, Deceased. Elizabeth Fuller PIERRONG, Petitioner and Appellant, v. Antoinette Fuller McMUNN, Contestant and Respondent, Virginia P. Wood, as Guardian for Bruce Fuller Wood and Bonnie Alice Wood, Respondent. Civ. 21701.

Page 342

300 P.2d 342

143 Cal.App.2d 820

In re FULLER'S ESTATE In the Matter of the Estate of Alice I. FULLER, Deceased Elizabeth Fuller PIERRONG, Petitioner and Appellant, v. Antoinette Fuller McMUNN, Contestant and Respondent Virginia P. Wood, as Guardian for Bruce Fuller Wood and Bonnie Alice Wood, Respondent.

Civ. 21701.

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

Aug. 15, 1956.

Hahn & Hahn and Allyn H. Barber, Pasadena, for appellant.

John C. Mead, Los Angeles, and Noren Eaton, Sierra Madre, for respondent McMunn.

VALLEE, Justice.

Appeal from part of a decree of distribution. The question is whether Antoinette Fuller McMunn forfeited her rights under the will of the deceased by contesting or attacking or opposing the will, or in seeking to impair or invalidate any of its provisions, or in endeavoring to succeed to part of the estate otherwise than through the will.

Alice I. Fuller died testate on October 13, 1952. Her will left the residue of the estate in trust with directions to pay the income to Mrs. McMunn for life. It contained this in terrorem provision:

'If any devisee, legatee or beneficiary under this will, or any person claiming under or through any devisee, legatee or beneficiary, or any other person who, if I died wholly or partly intestate would be entitled to share in my estate shall, in any manner whatsoever, directly or indirectly, contest this will or attack, oppose or in any manner seek to impair or invalidate any provision thereof, or shall, in any manner whatsoever, conspire or cooperate with any person or persons attempting to do any of the acts or things aforesaid, or shall settle or compromise directly or indirectly, either in or out of court, with any such contestant, or shall acquiesce in or fail to oppose such proceedings, or shall endeavor to succeed to any part of my estate otherwise than through this will, then in each of the above mentioned cases, I hereby bequeath to such person or persons the sum of One Dollar ($1.00) only, and all other bequests, devises and interests in this will given to such devisees, legatees and beneficiaries shall be forfeited and shall be distributed pro rata among such of my devisees, legatees and beneficiaries as shall not in any manner have participated in, and as shall have opposed such acts or proceedings. If all of my devisees, legatees and beneficiaries shall participate in or fail to oppose such proceedings, I give, devise and bequeath the whole of my estate to my heirs-at-law according to the laws of succession of the State of California then in force, excluding all contestants and said devisees legatees and beneficiaries and their successors in interest.'

On October 23, 1952 the executrix and executor named in the will petitioned for probate, and notice of the hearing was duly posted and published. Prior to the hearing and on November 18, 1952, Mrs. McMunn filed written grounds of opposition to its probate and caused a citation to be issued. In the opposition she alleged unsoundness of mind, want of due execution, and undue influence exercised by Elizabeth Fuller Pierrong, her daughter and granddaughter of the deceased.

On November 21, 1952 the court set the contest for trial for February 26, 1953. On January 16, 1953 the executrix and the executor filed a general and special demurrer to the opposition and a motion to strike the entire document and various parts thereof. At the hearing of the demurrer and the motion to strike on January 23, 1953, by stipulation the motion to strike was granted except as to two paragraphs thereof and the demurrer was ordered off calendar. On February 20, 1953 Mrs. McMunn filed a dismissal of the opposition.

The will was thereafter admitted to probate and an executrix and executor appointed. The executor later resigned. The petition for final distribution of the estate stated that the will devised and bequeathed the residue in trust to pay the income to Mrs. McMunn for life, alleged she had filed a contest of the will in which she opposed its admission to probate and that by filing the contest she forfeited her right to participate as beneficiary under the trust. Mrs. McMunn filed objections to the petition, alleging the contest was dismissed before an answer had been filed and a trial of the issues had, and that she was entitled to the income from the trust. The court sustained the objections; found that by reason of the fact the contest did not proceed to trial and judgment Mrs. McMunn did not contest the will or attack or oppose or in any other manner seek to impair or invalidate any provision of the will or endeavor to succeed to any part of the estate other than through the will; concluded she had not forfeited her right to take under the will; and distributed the income of the trust to Mrs. McMunn for life. Miss Pierrong appeals from that part of the decree ordering the trustee of the trust to pay the income thereof to Mrs. McMunn for life.

Miss Pierrong contends Mrs. McMunn violated the in terrorem provision of the will and thereby forfeited all rights thereunder. Mrs. McMunn claims the document she filed was a mere 'paper contest,' and since she dismissed before trial she does not come within the purview of the in terrorem provision.

It is a cardinal rule of construction that the intent of the testatrix, as manifested by the terms of the will, must be given effect. The property of a testatrix is hers to dispose of as she wills, and she is not called on to consult or follow the wishes or views of her heirs or beneficiaries or of courts or juries. In re Spencer, 96 Cal. 448, 452, 31 P. 453; In re Estate of Markham, 46 Cal.App.2d 307, 314, 115 P.2d 866. The testatrix was free to dispose of her property on whatever condition she wished to impose so long as the condition was not prohibited by law or opposed to public policy. She could give or refrain from giving, and could attach to her gifts any lawful condition which her reason or caprice might dictate. She was disposing of her own property and the beneficiary claiming thereunder must take the gift, if at all, on the terms offered. In re Estate of Miller, 156 Cal. 119, 121, 103 P. 842, 23 L.R.A.,N.S., 868; In re Kitchen's Estate, 192 Cal. 384, 389, 220 P. 301, 30 A.L.R. 1008; In re Estate of Markham, 46 Cal.App.2d 307, 314, 115 P.2d 866.

A provision in a will providing for forfeiture of a legacy or devise in the event of a contest of the will by a legatee or devisee is valid and binding on such legatee or devisee. In re Estate of Hite, 155 Cal. 436, 439, 101 P. 443, 21 L.R.A.,N.S., 953; Lobb v. Brown, 208 Cal. 476, 484, 281 P. 1010; In re Estate of Markham, 46 Cal.App.2d 307, 314, 115 P.2d 866; In re Estate of Howard, 68 Cal.App.2d 9, 11, 155 P.2d 841. An in terrorem provision in a will is not against public policy and must be enforced as written. In re Garcelon's Estate, 104 Cal. 570, 590, 38 P. 414, 32 L.R.A. 595; In re Estate of Hite, 155 Cal. 436, 439-441, 101 P. 443, 21 L.R.A.,N.S., 953; In re Estate of Miller, 156 Cal. 119, 121-122, 103 P. 842, 23 L.R.A.,N.S., 868. An in terrorem clause is to be strictly construed. 'The rule that a forfeiture clause is to be strictly construed means simply that no wider scope is to be given to the language employed than is plainly required. It does not require the court to put a strained or overtechnical construction upon the language employed, ignoring the essence of the condition imposed upon the legacy and refusing to give effect to the lawful intention of the testatrix, to enable a legatee to affirm a will so far as it is to her own profit and at the same time repudiate the validity of its provisions which are for the benefit of others. No artificial distinctions are to be taken advantage of or quibbling indulged in to the end that a person plainly and palpably coming within the scope of the forfeiture clause may by 'some hook or crook' escape the penalty of forfeiture.' In re Kitchen's Estate, 192 Cal. 384, 389, 220 P. 301, 303, 30 A.L.R. 1008. Whether there has been a contest within the meaning of the language used in a will is to be determined according to the circumstances in each case. In re Estate of Mathie, 64 Cal.App.2d 767, 776, 149 P.2d 485.

The contention that because the grounds of opposition to probate of the will were dismissed after the hearing of the motion to strike and was not brought to trial there was no contest is answered by In re Estate of Hite, 155 Cal. 436, 101 P. 443, 21 L.R.A.,N.S., 953. The will in that case merely said that if anyone contests my will he shall receive no part whatever of my estate and any bequest or devise is revoked. Before probate one of the legatees named in the will filed a contest of a codicil on the ground of nonexecution, want of mental capacity, and undue influence; and she and another legatee filed a contest of a second codicil on the same grounds. Answers were filed. The contestants filed a motion to strike parts of the answers. Before the motion was heard the chief beneficiary under the second codicil agreed to pay the contestants more than they were bequeathed by the codicils but less than they were bequeathed by the will. The opposition was thereupon dismissed and the will and codicils admitted to probate. The probate court held that the legatees had not contested the will. The opinion of the Supreme Court reversing the probate court is so directly applicable to the case at bar that we are constrained to quote at length from it. The court said, 155 Cal. at page 441, 101 P. at page 445:

'Such a condition, then, not being repugnant to, but favored by, public policy, the question of paramount importance arises: Did respondent bring herself within the purview of that condition? Did she, within the meaning of the language employed by the testator, 'contest his will'? It will at once be conceded that the verb 'contest' is not to be construed according to its popular and primary meanings--to oppose,...