Goyette's Estate, In re

• Decision Date: 09 February 1968
• Docket Number: MONTEREY-FRESNO
• Citation: 258 Cal.App.2d 768,66 Cal.Rptr. 103
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Linus A. GOYETTE, Deceased. Jean C. IJAMS and Andrew F. Ariey, Appellants, v. DIOCESE OFEDUCATION & WELFARE CORPORATION, etc., Respondents. Civ. 811.

Page 103

66 Cal.Rptr. 103

258 Cal.App.2d 768

In re ESTATE of Linus A. GOYETTE, Deceased.

Jean C. IJAMS and Andrew F. Ariey, Appellants, v. DIOCESE OF MONTEREY-FRESNO EDUCATION & WELFARE CORPORATION, etc., Respondents.

Civ. 811.

Court of Appeal, Fifth District, California.

Feb. 9, 1968.

Hearing Denied April 4, 1968.

[258 Cal.App.2d 770] W. A. Bloyd, Reedley, and Charles A. Zeller, Stockton, for appellants.

Andrews, Andrews & Thaxter and James F. Thaxter, Fresno, for respondents.

OPINION

GARGANO, Associate Justice.

Appellants, Andrew F. Ariey and Jean C. Ijams, are the nephew and niece of the decedent, Linus A. Goyette, and residual beneficiaries under his last will and testament. Respondents are charitable or benevolent societies and corporations also named as beneficiaries in the will. Appellants appeal from an order settling first account and for preliminary distribution.

There is no dispute as to the essential facts. Decedent, a widower, was not survived by parents or lineal descendants. His nearest surviving next of kin were two sisters and a brother. Appellants are the children of a surviving sister. Decedent died January 16, 1964, leaving a will which he executed less than six months but more than 30 days prior to his death. Under the will decedent left a substantial portion of his property in trust to a surviving sister and a non-relative with the remainder over, upon the death of the survivor, to the respondents. The will leaves the residue of the estate to certain relatives (including appellants) in varying shares, and it does not contain a substitutionary clause in the event the charitable gifts should fail. In addition, the will contains an In terrorem clause which provides:

'FIFTH: I have purposely made no provision herein for any other person, whether claiming to be an heir of mine or not, and if any person should claim to be an heir of mine and as such should assert a claim to my estate or any part thereof, or should any person whether a beneficiary under this Will or not mentioned herein, contest this Will or object to any of its provisions, then to such person or persons, I hereby give and bequeath the sum of ONE DOLLAR and no more, in lieu of the provision which I have made or which I might have made herein for such person or persons.'

After the will was admitted to probate, the executrix filed a first account and petition for allowance of preliminary distribution. Appellants then filed an objection to the executrix's petition for preliminary distribution. They alleged that the gift over to the charities exceeded the limits prescribed by Probate Code section 41 and requested the court to make distribution of the excess according to the provisions of this section. ¹ Respondents filed an answer to appellants' objection, asserting that appellants had violated the testator's In terrorem clause and hence could no longer object to the charitable gifts. The probate court, in a well reasoned opinion, agreed with respondents and ruled that appellants had forfeited their interests in the residuary estate and could not object to the alleged excessive gift to the charities. The court then ordered preliminary distribution of the trust estate accordingly.

It is true, as appellants assert, that forfeiture clauses in wills are strictly construed. Even so, the scope of an In terrorem clause depends entirely on the language used by the testator and must be enforced according to his clearly expressed intent unless it violates some basic public or statutory policy. In other words, In terrorem clauses are not of themselves against public policy and may be used to prohibit any legal proceeding designed to thwart the testator's wishes (Estate of Hite, 155 Cal. 436, 101 P. 443, 21 L.R.A.,N.S., 953; Estate of Holtermann, 206 Cal.App.2d 460, 23 Cal.Rptr. 685; Estate of Howard, 68 Cal.App.2d 9, 155 P.2d 841). Thus, such clauses must be enforced according to their terms if clear and certain (In re Kitchen, 192 Cal. 384, 220 P. 301, 30 A.L.R. 1008; Estate of Miller, 156 Cal. 119, 103 P. 842, 23 L.R.A.,N.S., 868). As our Supreme Court has stated:

'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 the forfeiture.' (In re Kitchen, supra, 192 Cal. 384, 389--390, 220 P. 303.

With these principles in mind, we are impelled to agree with the probate court's decision that appellants violated the In terrorem clause of decedent's will when they objected to the executrix's petition for preliminary distribution. They alleged in their objection to distribution that the gifts to the charities collectively exceed one-third of the decedent's estate and, if granted, the petition for preliminary distribution would result in a violation of section 41 of the Probate Code. They also alleged that appellants were residuary legatees and devisees entitled to receive their proportionate share of the excess and prayed that distribution be had accordingly. Thus, it is manifest that appellants not only objected to certain testamentary provisions contrary to the testator's directions but also sought to thwart his wishes by preventing distribution of his property in accordance with the plain language of the will. As the probate court aptly stated:

'It would require a strained construction, indeed, to find that the document that they (appellants) have labeled Objection to Preliminary Distribution which is based entirely on their position that the testator cannot legally accomplish what he clearly tried to accomplish in his Will, is not an objection to one of the provisions of the Will and in violation of paragraph FIFTH thereof. The language of the Will and the actions of the objectors compels the conclusion that the objectors are entitled to $1.00 each and are not entitled to share in the residue of the estate.'

Appellants argue that they were not objecting to any provision of the will but were merely seeking a construction of its provisions. This argument is completely untenable. Appellants did not ask for a construction of the language of the will. To the contrary, they unequivocally asserted that the testator left more than one-third of his property to charity and made it clear that they were only challenging the distribution of the excessive portion under Probate Code section 41. It is settled that gifts to charities which exceed the limits specified by Probate Code section 41 are not void. They are merely voidable if challenged by certain designated relatives of the decedent (Estate of Sanderson, Infra., 58 Cal.2d 522, 25 Cal.Rptr. 69, 375 P.2d 37; Estate of Davison, 96 Cal.App.2d 263, 215 P.2d 504). Thus, the obvious purpose of appellants' objection was to reduce the testamentary gift to respondents and to increase the amount of their share of the residue of the estate.

Appellants rely on Estate of Miller, 212 Cal.App.2d 284, 27 Cal.Rptr. 909, in support of their contention that they did not violate the In terrorem clause by objecting to the preliminary distribution. This case, however, is distinguishable. There the In terrorem clause was extremely limited in scope and only prohibited a 'contest' of decedent's will. Accordingly, the court focused on this restrictive language when it stated:

'The In terrorem clause provides the penalty of forfeitures as against anyone who '* * * shall contest in any court any of the provisions of this instrument. * * * ' It will be noted that the clause appears to be narrower in scope than many similar provisions in other wills; the key word is Contest; if the words employed by the testatrix refer only to a Contest of the will, as distinguished from opposition to the effect of some provision of the will, it would be clear that the In terrorem clause could not be invoked against Miriam. 'Contest of a will' is a term of art, the connotation of which is made clear in the context of the appropriate Probate Code sections.' (212 Cal.App.2d at 296, 27 Cal.Rptr. at 916.)

Significantly, in a subsequent appeal, the court further stated:

'A 'contest' of a will may result in a forfeiture in California if the will contains a properly drawn In terrorem clause denouncing contests and providing for forfeiture in such circumstances. (Citations.)

'Much...