Luckel's Estate, In re

• Decision Date: 04 June 1957
• Citation: 151 Cal.App.2d 481,66 A.L.R.2d 846,312 P.2d 24
• Court: California Court of Appeals Court of Appeals
• Parties: , 66 A.L.R.2d 846 ESTATE of Louis LUCKEL, Deceased. John E. PETTIJOHN, as Administrator with Will-Annexed of Estate of Louis Luckel, Deceased, Mary Roberts and Adelaide E. Pettijohn, Appellants, v. Myrtle Frazee LUCKEL, Respondent. Civ. 22194.

Page 24

312 P.2d 24

151 Cal.App.2d 481, 66 A.L.R.2d 846

ESTATE of Louis LUCKEL, Deceased.

John E. PETTIJOHN, as Administrator with Will-Annexed of Estate of Louis Luckel, Deceased, Mary Roberts and Adelaide E. Pettijohn, Appellants, v. Myrtle Frazee LUCKEL, Respondent.

Civ. 22194.

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

June 4, 1957.

Potter & Rouse and Frank Wickhem, and Bernard Potter, Los Angeles, for appellants.

John N. Hurtt, Los Angeles, for respondent.

VALLEE, Justice.

Appeal from judgments determining interests in an estate.

Louis Luckel died May 3, 1952 leaving a will and three codicils. The will first bequeaths and devises the testator's furniture, household goods, and a parcel of realty to his wife, Myrtle Frazee Luckel, who survived him. The paragraph making these bequests and devises contains this provision:

'It is also my wish that funds or property of my estate be invested or taken to assure her [his wife] during her natural life a monthly income of One Hundred dollars, and in the event the appraised value of my estate shall exceed the sum of $50,000.00 then such monthly sums paid her shall be One Hundred and Fifty dollars, in such manner as the Executors of my estate determine.'

It bequeaths $2,500 to Mary Roberts, grand-daughter, 'being the proceeds of real property belonging of which I was entrusted including interest accrued thereon,' and $200 to a Masonic lodge. A devise of realty called 'Noah Beery Paradise Troutfarm' was made subject to a life estate in Frank H. Luckel, son, and Adelaide E. Pettijohn, daughter, and their descendants living at the death of the testator. The devisees of the fee in the trout farm renounced the devise.

The first codicil bequeaths the income from the trout farm to the testator's children and their descendants during their lives. The second codicil gives the residue of the estate ot Frank H. Luckel and Adelaide E. Pettijohn. The third codicil is not relevant. Frank H. Luckel assigned his interest in the estate to Adelaide E. Pettijohn.

John E. Pettijohn, as administrator-with-the-will-annexed, petitioned for a decree determining interests in the estate. He alleged there was a bequest of income to Myrtle Frazee Luckel, surviving spouse, 'providing that there should be invested or taken funds or property of said estate not specifically devised to assure her the sum of $100.00 per month during her life.' Myrtle Frazee Luckel, surviving widow, filed a statement of her claim alleging that under the terms of the will she was bequeathed $100 a month for and during her natural life; the will provides 'funds or property of my estate be invested or taken to assure [her] during her natural life a monthly income of One Hundred dollars'; said annuity accrues from the date of death of the deceased with interest at 4 per cent per annum; said annuity is a charge on the general assets of the estate. Adelaide E. Pettijohn, a daughter of the deceased, filed a statement of her claim alleging that the estate consists of separate property; she and Frank H. Luckel, a son of the deceased, are the residuary legatees; the appraised value of the estate is less than $50,000; the property of the estate, other than the trout farm, is sufficient to assure Myrtle Frazee Luckel an income of $100 a month; she is entitled to the residue of the estate subject to a life estate in the trout farm and subject to the rights of Myrtle Frazee Luckel in the balance of the estate; she is entitled to a life estate together with others, not including the widow, in the trout farm.

The court found that by the terms of the will and codicils the estate is bequeathed and devised as follows: 1. It was the wish of the deceased that funds or property of his estate be invested or taken to assure the widow during her natural life a monthly income of $100 in such manner as the executors may determine. The appraised value of the estate is less than $50,000. 2. To Mary Roberts $2,500, being the proceeds of realty with which deceased was entrusted. 3. To Acacia Lodge No. 438 F. & A. M. $200 to be donated or used for the benefit of the Masonic Orphans Home and Old Peoples' Home. 4. Noah Beery Paradise Troutfarm to the entities named in the will. 5. The residue to Frank H. Luckel and Adelaide E. Pettijohn. 6. In the event the entities named in the will do not accept the devise of the trout farm, the same to pass to Acacia Lodge of Masons and the Masonic Board of Relief, subject to life estates in the children and descendants of deceased. The court further found that: 1. Frank H. Luckel has assigned his interest in the estate to Adelaide E. Pettijohn. 2. The devisees of the trout farm have renounced the devise to them.

The court concluded, among other things, that the will bequeathed an annuity of $100 a month for life to Myrtle Frazee Luckel; the annuity begins as of the date of death of the deceased; and that the $2,500 bequest to Mary Roberts be reduced to the extent that abatement may take place if the residue be insufficient to pay the cost of the annuity.

On May 23, 1956 the court rendered a judgment which decreed: 1. Adelaide E. Pettijohn, Mary Roberts, Frances Jones and Maury Jones have a joint and survivor life estate in the trout farm. 2. The $2,500 bequest to Mary Roberts, or such portion as may be payable, be reduced to the extent that abatement may take place if the residue be insufficient to pay the cost of the annuity for Myrtle Frazee Luckel. 3. '[I]f a petition to purchase an annuity, under Probate Code, Section 584, be filed by an interested party, then the administrator shall use the residue of the estate, rateably reduced to the extent necessary to proportionately pay the bequest of $2,500 to Mary Roberts, or as much thereof as may be required to purchase an annuity of $100 per month payable to Myrtle Frazee Luckel from the date of death of Louis Luckel to the date of death of Myrtle Frazee Luckel; provided if the amount available be insufficient to purchase an annuity in such amount, then it shall be purchased in an amount for which funds are available, having in mind possible rateable abatement of the $2,500 bequest to Mary Roberts; that the accrued and unpaid payments of $100 per month to draw interest from the date of death of the deceased Louis Luckel at the rate of 4% per annum, which interest shall be distributed in cash; if sufficient funds be available after payment of such $2,500 bequest and purchase of such annuity, then the $200 cash bequest to Acacia Lodge shall be paid in full, otherwise such bequest shall abate to the extent that such funds are not available. If no interested party files a petition to purchase an annuity, under Probate Code, Section 584, then the court retains jurisdiction to determine distribution of the estate. * * *' 4.Adelaide E. Pettijohn is entitled to the residue of the estate.

On July 3, 1956 the court rendered an amended judgment. This judgment contains all the provisions of the judgment of May 23, 1956 and adds this:

'Myrtle Frazee Luckel is bequeathed, and she is entitled to, an annuity of $100.00 per month, payable to her from the date of the death of the deceased Louis Luckel to the date of her death; and that said Myrtle Frazee Luckel is entitled to interest on all accrued and unpaid payments of $100.00 per month, payable in cash, from the date of death of said decedent, at the rate of 4% per annum.'

The administrator, Adelaide E. Pettijohn, and Mary Roberts appeal from both judgments. We deem the judgment of May 23, 1956 to have been superseded by the judgment of July 3, 1956. Accordingly, the appeal from the judgment of May 23, 1956 will be dismissed.

The points urged for reversal are: 1. The will does not provide an annuity for Myrtle Frazee Luckel. 2. Rayment to her does not begin on the date of death of deceased but on the date of distribution. 3. The court erred in directing the purchase of an annuity. 4. The $100 a month to be paid the widow is not a charge against the general assets of the estate. 5. The court erred in decreeing that the bequest to Mary Roberts should abate. It is asserted that the bequest of $100 a month to the widow is income from a trust and not an annuity.

The probate court's construction of the will was based solely on its terms without the aid of evidence. Accordingly, it is the duty of this court to construe it. In re Estate of Moody, 118 Cal.App.2d 300, 305, 257 P.2d 709.

In determining whether a testamentary gift is an annuity or merely income from a trust fund, the testator's intention is of paramount importance. A will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect if possible. Each case depends on its own particular facts and precedents are of small value. In re Estate of Wilson, 184 Cal. 63, 66-68, 193 P. 581. Lord Coke made the sage observation that 'wills and the construction of them do more perplex a man than any other learning, and to make a certain construction of them, this excedit juris prudentum artem.' (Roberts v. Roberts, 2 Bulstr. 130, 80 Eng.Rep. 1008.) 'It has been stated frequently that when words of recommendation, request and the like are used in direct reference to the estate, they are prima facie testamentary and imperative, and not precatory. While the desire of a testator for the disposal of his estate is a mere request when addressed to his devisee, it is to be construed as a command when addressed to his executor. All expressions indicative of his wish or will are commands.' In re Estate of Lawrence, 17 Cal.2d 1, 7, 108 P.2d 893, 896.

It must be determined from the will whether the testator intended, on the one hand, to give the widow a fixed sum of money payable at the stated intervals, to be derived from income if sufficient or from income and principal if income alone be not sufficient; or whether, on the other hand, it was his purpose to give her only the income...