Gutierrez' Estate, In re

• Decision Date: 06 September 1963
• Docket Number: No. 27338,27338
• Citation: 33 Cal.Rptr. 593,220 Cal.App.2d 6
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Mercedes L. GUTIERREZ, Deceased. Anthony L. VILLA, Elena Grant III, Consuelo V. Hamilton II, and Francesca V. Rutherfurd, Appellants, v. Roy A. GUTIERREZ, as Administrator of Estate of Maurice A. Gutierrez, Deceased, and State of California, Respondents. Civ.

Page 593

33 Cal.Rptr. 593

220 Cal.App.2d 6

In re ESTATE of Mercedes L. GUTIERREZ, Deceased.

Anthony L. VILLA, Elena Grant III, Consuelo V. Hamilton II, and Francesca V. Rutherfurd, Appellants, v. Roy A. GUTIERREZ, as Administrator of Estate of Maurice A. Gutierrez, Deceased, and State of California, Respondents.

Civ. No. 27338.

District Court of Appeal, Second District, Division 4, California.

Sept. 6, 1963.

Rehearing Denied Oct. 3, 1963.

Hearing Denied Oct. 23, 1963.

Price, Postel & Parama and H. Clarke Gaines, Lilian M. Fish and Charles W. Willey, Santa Barbara, for appellants.

Paul C. Hill, Corona Del Mar, for respondent Roy A. Gutierrez.

Stanley Mosk, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent State of California.

BURKE, Presiding Justice.

Decedent died leaving a surviving spouse but no issue. She was also survived by a nephew and three nieces, children of her deceased sister. Approximately three years prior to her death she executed a document which, on a prior appeal, was declared to be a will and entitled to probate. (Estate of Gutierrez, 189 Cal.App.2d 165, 11 Cal.Rptr. 51.) The instrument read as follows:

'For Maurice Gutierrez. In case that I should have an illness, or my death, I want my husband (Maurice A. Gutierrez) to have some ready money--so am enclosing two cheques. One to the Bank of Arizona, Prescott, Arizona (saving department, am also enclosing book--in this letter for $35,000. The other cheque to the United States Trust Company of New York, 45 Wall Street, New York--N.Y. for $9,000--He is to have his share of my estate, which is taken care of by the United States Trust Company of New York, 45 Wall Street--New York--N.Y. and the rest to different charities. signed Mercedes L. Gutierrez January 13-1955.'

At the time of death decedent was domiciled at Santa Barbara, California. Her California estate, all her separate property, consisted of cash and various items of personal property inventoried at a value of $84,581.54. During her lifetime, and while a resident of Arizona, decedent established an inter vivos trust naming the United States Trust Company of New York as trustee, reserving a life estate in the trust income and a testamentary power of appointment over the remaining interest. The power of appointment was reserved in the following words: 'The trust estate, together with all accrued but uncollected income thereon, shall, upon the death of the Grantor, forthwith be transferred and paid to such person or persons in trust or otherwise as the Grantor may be a duly executed and proved last will and testament direct and appoint; and in the absence of such direction or appointment, then to the persons entitled thereto under the laws of succession of the state in which she resides at the time of her death in the proportions therein specified.' In the trust instrument the decedent directed that it be construed and regulated by the laws of New York.

The principal and accrued income of the New York trust at the time of death aggregated $691,000.

The surviving spouse, as administrator with the will annexed, filed his petition for a decree determining heirship. A statement of interest was filed by the Attorney General, as parens patriae, asserting that the bequests in the will 'to different charities' created a valid charitable trust of the residue of decedent's estate and praying that the court appoint a qualified trustee to receive and administer such bequest. The nephew and three nieces filed their statement of interests in the estate, claiming that each was entitled to a proportionate share of all property not passing under the will of said decedent and, under section 41 of the Probate Code of California, to the excess over one-third of the estate of all property left to charity. The surviving spouse likewise objected to distribution of any charitable bequests in excess of one-third of the estate.

Hearing was had on said petition, findings of fact and conclusions of law were signed and a decree determining heirship entered. The decree declares:

'That upon final distribution, one-third of the net distributable residue of decedent's estate shall go to Maurice A. Gutierrez as surviving husband of the decedent, and the balance shall go to the Santa Barbara Foundation in trust for charitable purposes.

'The Santa Barbara Foundation as trustee, shall distribute the funds so received to worthy organizations engaged exclusively in charitable activities and shall have the power within its discretion to distribute principal as well as income of said trust fund. In carrying out this trust said trustee is directed to give special consideration to those charitable organizations supported by the decedent as set forth in the Findings of Fact herein.

'The administrator herein is directed to take such action as is appropriate to bring about disposition of decedent's trust estate, managed by the United States Trust Company of New York, in accordance with her will as construed by this Court.'

Somewhat explanatory of such decree were the court's findings of fact and conclusions of law, the following finding being pertinent:

'By the above quoted portion of her Will, the decedent intended that her husband receive the same share of the assets held in trust by the United States Trust Company of New York as he would take if she had made no Will and that all other property which was subject to her right of disposition, including the remaining assets of said New York trust as well as all her other property, be devoted to charitable purposes.'

The nephew and nieces appealed from the above decree. No appeal was taken by the surviving spouse either in his capacity as administrator or in his individual capacity.

After the appeal was taken by the nephew and nieces the surviving husband died and his personal representative has been substituted in his place and has filed a brief resisting the appeal and urging affirmation of the order of the trial court. It is now settled that the right to object to a devise or bequest which violates division 1, chapter 1, article 2 of the Probate Code is personal and must be made by an eligible her during his lifetime. (In re Estate of Bunn, 33 Cal.2d 897, 206 P.2d 635.) It is also settled that an objection, once filed by such a person, can thereafter be prosecuted to conclusion by his personal representative. (In re Estate of Sanderson, 58 Cal.2d 522, 25 Cal.Rptr. 69, 375 P.2d 37.) Here, as has been noted, the personal representative has not elected to appeal.

The appellant nephew and nieces contend that as blood relatives they are entitled under Probate Code section 41 to participate in that portion of the decedent's estate which exceeds one-third of decedent's estate because Probate Code section 43 was rendered totally inapplicable by the contest of the charitable bequest asserted the decedent's surviving husband; that as nephew and nieces they qualify as the intestate heirs of the testatrix, entitled to succeed to the excessive charitable bequest under Probate Code section 223.

Appellants also contend that the court erred in its references to the New York trust estate in the order appealed from, asserting that the court had no jurisdiction to determine interests in decedent's inter vivos New York trust estate. Without conceding that the trial court did anything more in its order than direct the administrator of the California estate to take appropriate action to bring about disposition of the trust estate in accordance with the court's construction of the will, since we hold that under the proper application of section 41 and section 43 ¹ of the Probate Code appellants have no interests in the estate, these contentions need not be dealt with. No issue has been raised with respect to the portions of the decree directing that the Santa Barbara Foundation shall receive the bequests to charity and carry out those provisions of the will as trustee.

To appellants, a strict reading of Probate Code section 43 renders that section inapplicable because the decedent did leave a spouse who not only did not execute a waiver of the statutory limitation on charitable bequests imposed by section 41 at least six months prior to the decedent's death, but actually objected to the charitable bequest to the extent that it exceeded one-third of the decedent's estate. The representative of the surviving spouse and the respondent Attorney General dispute such resolution of the matter, contending that only the specific classes of heirs enumerated in section 43 have any right of contest whatever when the will has been executed six months or more before the testator's death. They contend that collateral heirs have no right to ride in on the 'coat tails' of one of the enumerated heirs who made objection under section 43 to any excessive disposition to charity.

The Attorney General relies principally on In re Estate of Bunn, supra, 33 Cal.2d 897, 206 P.2d 635. In that case the surviving spouse died without having objected to the disposition to charity made by the predeceased wife. It was held that the administrator of the estate of Mrs. Bunn's husband was not in a position to contest the charitable bequest, as the right to object under section 43 was purely personal and, not having been exercised by the husband, would not pass to the representative of the husband as part of his estate. The court stated (at pages 900-901 of 33 Cal.2d at pages 637, 638 of 206 P.2d): 'Although the question as to who may assert the invalidity of a devise or bequest subject to the provisions of section 43 of the Probate Code has not been directly decided by the appellate courts of California, under the authorities in other jurisdictions the respondents cannot do so because they are not members of the designated class. 'The prohibition contained in the statute is a limitation upon the right of a testator to dispose of his property in accordance with his own inclinations and desires. ...