Lefranc's Estate, In re

• Decision Date: 18 January 1952
• Citation: 38 Cal.2d 289,239 P.2d 617
• Court: California Supreme Court
• Parties: In re LEFRANC'S ESTATE. MASSON v. HORNEY et al. S. F. 18239.

Page 617

239 P.2d 617

38 Cal.2d 289

In re LEFRANC'S ESTATE MASSON v. HORNEY et al.

S. F. 18239.

Supreme Court of California, in Bank.

Jan. 18, 1952.

James A. Brown, San Francisco, for appellant.

Burnett & Burnett, San Jose, for Nelty Lefranc Horney.

SCHAUER, Justice.

Appellant, Adele Masson, is both an heir at law and named as a legatee under the last will of decedent, Marie Lefranc. She appeals from a decree of final distribution which provides that because she had contested the will she had forfeited her substantial rights thereunder and which orders distribution of the entire residue of the estate to respondent, Nelty Lefranc Horney. We have concluded that the trial court correctly denied Adele a share of the estate, other than an alternative bequest of $1.00, but that the decree appealed from must be reversed because of failure to comply with provisions of the testatrix' will and with the law relating thereto.

Marie Lefranc died on April 7, 1942, leaving as her sole heirs at law two nieces, who are the appellant Adele and the respondent Nelty. By her will decedent made certain minor specific bequests and then left 'all the rest, residue and remainder of my Estate' to a trustee to be held 'subject to the following, uses, terms, conditions and limitations:

'(a) My said trustee shall pay to my niece, Adele Masson, during her lifetime, all of the net income of said Trust Estate.

'(b) This Trust shall cease and terminate upon the death of my said niece, Adele Masson, hereupon the corpus of said trust, as well as any undistributed income thereon shall become the property of and vest in the issue of my said niece, Adele Masson, born in lawful wedlock. If my said niece, Adele Masson, shall leave no issue born in lawful wedlock upon her death, then the corpus of said trust and the undistributed income thereon shall become the property of and vest in my niece Nelty Lefranc Horney, if she be alive at said time. If Nelty Lefranc Horney should predecease Adele Masson, then upon the death of said Adele Masson, without issue born in lawful wedlock, the corpus of said trust and the undistributed income thereon shall vest in the issue of said Nelty Lefranc Horney.

'(c) (The powers of the trustee over the property are here set forth.)

'(d) It is expressly understood that the net income arising from this trust estate, and the principal thereof, are intended for the sole and individual use and enjoyment of the said beneficiary, Adele Masson, subject to the terms and conditions hereof, and said beneficiary shall not in any event sell, assign, transfer, convey, pledge, hypothecate or otherwise encumber her interest under this trust nor shall the principal or any of the income arising therefrom be liable for any debt of said beneficiary, nor subject to a judgment or judgments rendered against said beneficiary nor to the process of any Court in aid or execution of any judgment or judgments so rendered.'

The next succeeding clause of the will provides: 'I purposely make no provision for any other person whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this Will or not mentioned herein, shall contest this Will or object to any of the provisions hereof, I give to such person so contesting or objecting the sum of $1.00 and no more in lieu of the provision which I have made, or which I might have made herein for such person so contesting or objecting.'

The will was admitted to probate and some six months later, in October, 1942, Adele petitioned to revoke the probate thereof on the ground that decedent was of unsound mind when the will was executed. The will was upheld in the trial court and the judgment was affirmed on appeal. (In re Estate of Lefranc (1950), 95 Cal.App.2d 885, 214 P.2d 420.)

Thereafter the executors filed their first and final account, and petition for final distribution. They asked that, because Adele had by her contest of the will forfeited her rights (other than to the alternative bequest of $1.00) as a beneficiary thereunder, the entire residue of the estate be distributed to Nelty Lefranc Horney. Adele filed objections to the petition, asserting that she was entitled to take under the trust provisions of the will notwithstanding her contest of its probate. Nelty also filed certain objections to the account; but joined in the request of the executors that the residue of the estate be distributed to her. She alleged that Adele, who is childless, is unable by reason of a surgical operation to bear a child; that 'the only reason for said trust was the support of Adele'; that even if the 'trust remains in effect, all income should be distributed to Nelty.'

After a hearing the trial court found, among other things, 'That at the time of the commencement of said will contest proceeding by said Adele Masson, to wit, on the 7th day of October 1942, said Adele Masson was unmarried and has never been married, was approximately 48 years of age, and had not then nor has she since given birth to any child or children, nor does she have nor has she ever had any child or children.'

'That the only reason for the creation of the trust in said will was for the individual use and enjoyment of said Adele Masson as to net income and principal, subject to the terms and conditions of the will of said decedent; that by virtue of the contest of said will commenced by Adele Masson as aforesaid, together with the results flowing therefrom as aforesaid, including paragraph Sixth (the contest clause) of said will, the reasons for the creation of said trust ceased to exist, and said trust ceased and terminated and never came into effect or being, and that (the trustee) * * * is entitled to have distributed to it nothing under said will, and the entire rest and residue of said estate should be distributed to Nelty Lefranc Horney, free from any trust or other restriction.' Final decree of distribution was thereupon entered, under which $1 is ordered distributed to Adele and the residue of the estate to Nelty. This appeal by Adele followed.

At the hearing there was read into the record certain testimony of the attorney who drafted the will, given on the trial of the will contest, to the effect that the reason 'as to why there should be a trust' was that it was 'considered that Adele was not competent to do business, to handle her own affairs as a business woman. * * * They didn't think that * * * Adele could compete with business people in dealings with her property. She needed a manager.' No other evidence concerning the trust purpose was offered. Nelty's attorney offered to prove that as the result of a surgical operation Adele was incapable of bearing children; this offer of proof was never directly ruled upon, and no evidence on the issue was presented.

Appellant now concedes the law to be settled that by her contest of the will she has, pursuant to the contest clause contained therein, lost her rights to take more than $1 under the will. (See In re Estate of Hite (1909), 155 Cal. 436, 101 P. 443, 21 L.R.A.,N.S., 953; In re Estate of Miller (1909), 156 Cal. 119, 103 P. 842, 23 L.R.A.,N.S., 868; In re Kitchen's Estate (1923), 192 Cal. 384, 389, 220 P. 301, 30 A.S.R. 1008; Lobb v. Brown (1929), 208 Cal. 476, 484, 281 P. 1010.)

Appellant (presently some 57 years of age) contends, however, that no act of hers could work a forfeiture of the rights of her unborn issue, 'in whom the trust property is to vest upon her death'; and that distribution to Nelty free of the trust would effect such a forfeiture. In this connection she argues that under the law 'both in this and every other American jurisdiction, the possibility of issue is never regarded as extinct until death.' (See Fletcher v. Los Angeles Trust & Savings Bank (1920), 182 Cal. 177, 187 P. 425.) It appears, however, that the question need not be decided here, for the reason that Nelty has two minor children, now living, whose rights to take the property upon the death of Adele without issue and if Nelty predeceases Adele, are also involved, as discussed more fully hereinafter.

Adele's other contention on appeal is that 'the residue of the estate could not be distributed to Nelty * * * for the reason that the will * * * makes no disposition of the residue * * * in the event of a contest. Therefore, as to the life estate of appellant in the trust property, an intestacy results and Adele Masson, as an heir at law, is entitled to her share of the income from the property of the deceased.'

Under the provisions of various contest clauses heretofore considered by the courts it has been held that whether one in the position of Adele is entitled to succeed as an heir at law to any portion of the legacy (here, the trust income, which has been termed an 'equitable life estate' ¹) which she forfeited depends upon whether the testatrix made other valid disposition thereof. It has been said that 'A testator must do more than merely evince an intention to disinherit before the heirs' right of succession can be cut off. He must make a valid disposition of his property.' (In re Walkerly (1895), 108 Cal. 627, 652, 41 P. 772; Campbell-Kawannanakoa v. Campbell (1907), 152 Cal. 201, 207, 92 P. 184; see also In re Estate of Hency (1944), 66 Cal.App.2d 867, 869, 153 P.2d 427; In re Estate of Mathie (1944), 64 Cal.App.2d 767, 781, 149 P.2d 485.) Thus, in Re Estate of Mathie it is held that inasmuch as the entire estate, after payment of debts and expenses, was left in equal shares to two persons without other bequests, the will contained no residuary clause, and a legatee who had forfeited his legacy by contesting the will was nevertheless entitled to receive a share of such legacy under the laws of intestate succession. 'A 'residuary clause' has been defined to be the clause in a will by which that part of the property is disposed of which remains after satisfying bequests and devises. (69 C.J., p. 413, sec. 1472.)' (Childs v. Gross ...