Packham's Estate, In re

• Citation: 232 Cal.App.2d 847,43 Cal.Rptr. 318
• Court: California Court of Appeals Court of Appeals
• Decision Date: 15 March 1965
• Parties: In re ESTATE of Elisabeth D. PACKHAM, Deceased. Amy Butler TENNANT, Petitioner and Appellant, v. Gordon Wilson DENNIS and Myrtle E. Dennis, Shriners Hospital for Crippled Children, Wells Fargo Bank, and Susan Stevens, Sarah L. Cleary and Nancy Dennis Ruchenski, Objectors and Respondents. Civ. 22362.

Page 318

43 Cal.Rptr. 318

232 Cal.App.2d 847

In re ESTATE of Elisabeth D. PACKHAM, Deceased.

Amy Butler TENNANT, Petitioner and Appellant, v. Gordon Wilson DENNIS and Myrtle E. Dennis, Shriners Hospital for Crippled Children, Wells Fargo Bank, and Susan Stevens, Sarah L. Cleary and Nancy Dennis Ruchenski, Objectors and Respondents.

Civ. 22362.

District Court of Appeal, First District, Division 2, California.

March 15, 1965.

Moerdyke, Anderson & Joyce, Palo Alto, for appellant.

Bacigalupi, Elkus & Salinger, San Francisco, for respondents Myrtle E. Dennis and Gordon Wilson Dennis.

J. Clark Benson, San Francisco, for respondent Shriners Hospital for Crippled Children.

TAYLOR, Justice.

Amy B. Tennant, the niece of the predeceased husband of the testatrix, appeals from a decree denying her interest in the proceeds of the sale of certain real property of the estate of Elisabeth B. Packham. The only question on appeal is whether the trial court properly concluded that appellant's specific devise was adeemed through the sale of the real property by the guardian of the incompetent testatrix.

The facts are not in dispute. The relevant portion of the will executed in 1948 devised to appellant 'Any interest in the residential real property known as 57 Amador Avenue, Atherton, California, which I may own at the time of my death, or a sum equal to the net proceeds of sale of any said interest occurring during the administration of my estate. * * *' The other significant portions of the will impose on the residuary estate a charge of $8,000 in favor of respondents and cancel an indebtedness of respondent, Gordon W. Dennis.

In 1950, when the testatrix was declared incompetent and the Bank of America appointed as her guardian, her estate was valued in excess of $100,000. The testatrix remained incompetent until her death on December 14, 1962. On May 15, 1962, the guardian sold the Atherton property devised to appellant. The sale was duly confirmed by court order. The net proceeds from the sale were $27,000 and about $25,000 remains in the possession of the executors of the estate.

It is not necessary to discuss the various authorities cited by the parties, as the issue here presented was recently resolved by the Supreme Court in the Estate of Mason, 62 A.C. 219, 42 Cal.Rptr. 13, 397 P.2d 1005. The court there held that in the absence of proof that the testatrix intended an ademption, the sale by the guardian does not adeem a specific bequest. The court said at page 222, 42 Cal.Rptr. at page 15, 397 P.2d at page 1007: 'The reasons for refusing to find an ademption upon the guardian's sale are: (1) The incompetent testator lacks intent to adeem (see Wilmerton v. Wilmerton [7 Cir.], supra, 176 F. at pp. 899-900 ) and the opportunity to avoid the effect of an ademption by making a new will. (See Walsh v. Gillespie, supra, 338 Mass. at p. 283, 154 N.E.2d 906; 74 Harv.L.Rev. 741, 745.) (2) A contrary rule would allow the guardian, by changing the form of guardianship property, to determine the distribution of the estate. (See In re Cooper['s Estate], supra, 95 N.J.Eq. at p. 213, 123 A. 45 ; In re Estate of Bierstedt, supra, 254 Iowa at p. 778, 119 N.W.2d 234; 6 Page, Wills, supra, at pp. 273-274.)

'* * *

'Although a specific testamentary gift is adeemed regardless of the testator's intention when the specific property has been disposed of by the testator and cannot be traced to other property in the estate (see Prob.Code, § 161, subd. (1); Estate of Buck, 32 Cal.2d 372, 196 P.2d 769; Estate of Goodfellow, 166 Cal. 409, 137 P. 12), or when the testator has placed the proceeds of such property in a fund bequeathed to another (see Estate of Babb, 200 Cal. 252, 252 P. 1039), it does not follow that there is an ademption when the specific property has been sold and the proceeds spent by a guardian during an incompetency from which the testator does not recover.' This reasoning applies to the instant case, as it was here stipulated that the testatrix lacked testamentary capacity from 1950 until her death.

The only question remaining is whether the particular language of the devise to appellant provides a ground for distinguishing Estate of Mason, supra. The trial court here concluded from the will's terminology that the intent of the testatrix was to give the real property to appellant only to the extent that the testatrix owned the same...