MacDonald's Estate, In re
| Decision Date | 17 May 1955 |
| Docket Number | No. 16445,16445 |
| Citation | 283 P.2d 271,133 Cal.App.2d 43 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE of Betty Jo MacDONALD, Deceased. Glenn Malcolm MacDonald and Jack Edward MacDonald, Appellants, Bank of America National Trust and Savings Association, Executor of the Estate of Betty Jo MacDonald, Deceased, Respondent. |
Price, Macdonald & Knox, Paul J. tenDoesschate, Oakland, for appellants.
Wagstaffe & Daba, Redwood City, for respondent.
This is an appeal by the residuary legatees and devisees from an order of the Superior Court of San Mateo County granting a petition for partial distribution in the estate of Betty Jo MacDonald, deceased. The court distributed the proceeds of an automobile insurance policy to the mother of testatrix who had been bequeathed an automobile by her daughter's will, but which vehicle had been demolished in the accident which caused the death of testatrix.
The fourth paragraph of decedent's will provided as follows: 'I hereby give, devise and bequeath unto my mother Ruth Van Herwynen, whatever car I may own at the time of my death.'
On October 20, 1953, Betty Jo MacDonald died as a result of an automobile accident in which she suffered a skull fracture. The court found that the death of decedent occurred 'at a time not specifically known with relation to the damage to the automobile she was driving, but at a time no later than a few minutes after the actual accident.'
The automobile which decedent was driving was insured by a policy owned by her under which the insurer agreed to pay the insured for damage caused by collision or upset. The insurer's liability was not to exceed the actual cash value of the automobile. The insurance contract gave to the insurer the right, at its option, to 'take all or such part of the automobile at the agreed or appraised value.' The company could either pay for the loss in money or might repair or replace the automobile. The policy provided that in event of the death of the insured, the policy would continue to insure and protect the legal representative of the deceased.
The court found that the insurer secured an estimate of repairs to the damaged automobile in the sum of $2,914.51; that the actual book value of the car undamaged was $2,900; that the insurer at its option elected to pay the sum of $2,900 less $50 deductible or $2,850, to the executor; that the insurance company thereafter realized a salvage value of $300 from said automobile. It was found also that it was necessary under the insurance contract that possession and title to the damaged vehicle be given to the insurance company.
The court found that Ruth Van Herwynen was enitled to have distributed to her the sum of $2,850 in lieu of the automobile owned by decedent at the time of her death, and made its order accordingly.
Appellants contend that the finding that death occurred within a few minues after the accident does not support the court's legal conclusion that the legatee of the car is entitled to the insurance proceeds in lieu thereof. Although there is no California case directly in point, appellants cite an Oklahoma case, In re Estate of Barry, 208 Okl. 8, 252 P.2d 437, 35 A.L.R.2d 1052, which is very similar on its facts, holding that in such a situation the legatee of the automobile is not entitled to the insurance proceeds. In the cited case the owner of a Chrysler automobile which had been bequeathed to appellant, was wrecked in an accident which caused such serious injuries to the owner that she died eight hours after the accident. The insurance policy covering the car gave the insurer the option of repairing the car or taking possession of the same and paying the insured the agreed value The insurer exercised the option, as did the insurer herein, to pay the value of $2,600, and sold the wrecked automobile for $350, the salvage value thereof. The court noted that no decision of a court of last resort had been found which had passed on this question, but followed the decision in In re Hilpert's Estate, 165 Misc. 430, 300 N.Y.S. 886, a case in which a library, the subject of a bequest in testator's will, had been damaged by a fire which destroyed some of the books and damaged others. It was decided that as to the books totally destroyed the bequest had been to that extent adeemed, and that the remaining books were delivered in their damaged condition. The insurance policy was said to be a 'totally different asset of the decedent', a simple contract to pay the insured a fixed and ascertainable sum of money upon the happening of a specified event, and that it was a chose in action of decedent which passed to his personal representative. Apparently the insurance contract did not involve an option clause. The Oklahoma court, following this case, decided that the total insurance proceeds did not go to the legatee of the automobile, but only the automobile in its damaged condition. As the insurance company by exercising its option had made it impossible to deliver the damaged car to the legatee, the value thereof or $350 was to be paid to the legatee.
Respondent argues that these decisions are not controlling in this state where there is no law on the subject. Furthermore, she contends that an ademption of a bequest implies that the testator, with knowledge of the damage or destruction of the subject matter of the bequest, and with an opportunity to change his will, by failing to do so much have intended that the bequest be adeemed. In re Estate of Cline, 67 Cal.App.2d 800, 805, 155 P.2d 390. Clearly, here it cannot be said that it was the intent of the daughter to leave her mother the salvage value of an automobile instead of an automobile in operating condition. In this case the testator perished in the accident, and had no knowledge of the damage to the car, nor any opportunity to exercise an intent that the mother should receive the salvage instead of a vehicle that was...
To continue reading
Request your trial
-
Brown's Estate, In re
...(1967) 255 Cal.App.2d 80, 63 Cal.Rptr. 80; In Re Holmes' Estate (1965) 233 Cal.App.2d 464, 43 Cal.Rptr. 693; In Re MacDonald's Estate (1955) 133 Cal.App.2d 43, 283 P.2d 271; In Re Mason's Estate (1965) 62 Cal.2d 213, 42 Cal.Rptr. 13, 397 P.2d In the case of Gist v. Craig, 142 S.C. 407, 141 ......
-
Russell v. Williams
...In support of her position, plaintiff cites the decisions in Hawes v. Lathrop (1869), supra, 38 Cal. 493 and Estate of MacDonald (1955), 133 CalApp.2d 43 (283 P.2d 271). In the former, i. e., Hawes v. Lathrop, supra, 38 Cal. 493, property was transferred in trust for school purposes with a ......
-
Russell v. Williams
...foundation. In support of her position, plaintiff cites the decisions in Hawes v. Lathrop, supra, 38 Cal. 493 and Estate of MacDonald, 133 Cal.App.2d 43, 283 P.2d 271. In the former, i. E., Hawes v. Lathrop, supra, 38 Cal. 493, property was transferred in trust for school purposes with a re......
-
Estate of Ehrenfel, In re
...P.2d 699; Estate of McLaughlin, 97 Cal.App. 485, 275 P. 875; Estate of Cline, supra, 67 Cal.App.2d 800, 155 P.2d 390; Estate of MacDonald, 133 Cal.App.2d 43, 283 P.2d 271; Estate of Helfman, 193 Cal.App.2d 652, 14 Cal.Rptr. 482; Estate of Moore, 135 Cal.App.2d 122, 286 P.2d 939.) Of these c......
-
CHAPTER 2
...In support of her position, plaintiff cites the decisions in Hawes v. Lathrop, supra, 38 Cal. 493 (1869) and In re MacDonald’s Estate, 133 Cal. App. 2d 43 (1955). In the former, i.e., Hawes v. Lathrop, supra, 38 Cal. 493, property was transferred in trust for school purposes with a remainde......