Smith's Estate, In re

• Decision Date: 30 October 1961
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Clara I. SMITH, Deceased. Clinton E. SMITH, Appellant, v. Floyd V. SMITH, Leonard Smith and Ernest A. Smith, Respondents. Civ. 19570.

Page 681

16 Cal.Rptr. 681

196 Cal.App.2d 544

In the Matter of the ESTATE of Clara I. SMITH, Deceased.

Clinton E. SMITH, Appellant, v. Floyd V. SMITH, Leonard Smith and Ernest A. Smith, Respondents.

Civ. 19570.

District Court of Appeal, First District, Division 1, California.

Oct. 30, 1961.

Rehearing Denied Nov. 22, 1961.

Hearing Denied Dec. 20, 1961.

Bohnett, Hill & Bohnett, by L. D. Bohnett, San Jose, Hoey, Hoey & Hall, by Francis Hoey, Martinez, for appellant.

Tinning & DeLap, Robert Eshleman, Martinez, for respondents.

BRAY, Presiding Justice.

Respondents Floyd V. Smith, Leonard A. Smith and Ernest A. Smith, nephews of Clara I. Smith, deceased, filed in her estate a petition for order determining heirship. It was resisted by appellant Clinton E. Smith, also a nephew of said deceased, who here appeals from the order determining heirship, which decreed that the property therein described be distributed to appellant 'as trustee for the benefit of all parties in interest, with the right to a life estate in said real and personal properties for the lifetime of said Clinton A. Smith * * * [with] remainder over in and to said real and personal properties or of the full proceeds of sale thereof' to any issue then surviving of said Clinton E. Smith and to said respondents and to Earl W. Smith and Howard K. Smith. ¹

Questions Presented.

1. Do the contract, the original will and the codicil thereto show an intent of the testatrix to devise the property to appellant in fee simple?

2. Is there any provision justifying the probate court in declaring a trust?

Record.

This appeal is on a settled statement. It was stipulated at the hearing that there was no apparent ambiguity in any of the documents that would require oral testimony to explain, so no evidence, other than the documents, was introduced.

A part of deceased's estate was an orchard, which for some time prior to her death on July 4, 1958, had been managed by appellant. On May 24, 1948, she as first party and appellant as second party entered into a contract, the pertinent parts of which follow:

'Now Therefore, in consideration of the premises and the mutual covenants of said parties herein contained it is agreed as follows:

'1. That second party shall hereafter be responsible for the operation and management of said property;

'2. That the net income from said property * * * shall be divided equally between said parties * * *

'3. First party agrees that she will bequeath to second party by will all of said real property and all farm equipment and household furniture and effects, provided that first party reserves the right to make such bequests of specific items of household furniture and effects as she sees fit.

'4. Second party agrees that he will make a will leaving all of said property so bequeathed to him by first party, or the proceeds thereof in case of sale, to his brothers, Ernest, Leonard, Ray, Howard, Earl and Floyd Smith in equal shares; provided, that if any of said brothers shall predecease second party leaving issue said issue shall receive the share of said predeceased brother by right of representation; and provided further should second party leave surviving issue such issue shall share in said property to the same extent and in the same ratio as the children of his said brothers. Second party reserves the right to change his will from time to time but agrees that at all times during his lifetime he will have a will in existence leaving the same property as herein provided.'

On June 3 deceased executed a will (hereafter referred to as the original will), the pertinent terms of which follow:

'Second: I give, devise and bequeath to my nephew Clinton E. Smith, my home property in the County of Contra Costa, State of California, consisting of approximately eighty acres of land planted to apricot and cherry orchard, together with all farm equipment on said property and all household furniture and effects thereon.

'Third: All other property of whatsoever kind and wheresoever kind and wheresoever situated of which I may die possessed I give, devise and bequeath in equal shares to my nephews Ray H. Smith, Earl W. Smith and Floyd V. Smith. I have in mind my other nephews Ernest A. Smith, Leonard A. Smith and Howard K. Smith and have a deep affection for each of them. I leave them nothing by this will as I hope to give Ernest and Leonard some money from time to time during my life and I have full confidence that Ray will amply provide for Howard.'

On September 1, 1948, deceased executed a codicil to this will, the body of which reads:

'The property left to Clinton E. Smith by said will, is so left and bequeathed to him to comply with the terms of a written agreement between Clinton and me and said bequest is subject to the provisions of said agreement that Clinton will bequeath said property as provided in said agreement.

'The property bequeathed to Ray H. Smith, Earl W. Smith and Floyd V. Smith, by said will, I now bequeath to said three nephews and to Ernest A. Smith, Leonard A. Smith and Howard K. Smith in equal shares, each of my said six nephews to receive one-sixth of said property.

'I reaffirm said foregoing will except as the same is hereby expressly changed.'

All three documents were drawn by deceased's attorney. All three documents were admitted to probate as the will of deceased. (Since this case involves written instruments and no extrinsic evidence was introduced in the court below, this court is not bound by the trial court's interpretation of the documents, but may consider the question de novo. Estate of Platt, 1942, 21 Cal.2d 343, 131 P.2d 825. However, as will appear, we agree with the trial court's determination.)

1. The Estate Devised.

It was stipulated that the original will, standing alone, would have devised the property to appellant in fee simple. Respondents contended that the agreement was made a part of the will by reference in the codicil and limited the devise to a life estate. Appellant contended otherwise. The court sustained respondents' contention.

In interpreting a will the primary question is the intention of the testatrix. Prob.Code, § 101; Estate of Brunet, 1949, 34 Cal.2d 105, 107, 207 P.2d 567, 11 A.L.R.2d 1382; Estate of Emerson, 1947, 82 Cal.App.2d 510, 512, 186 P.2d 734. Each case must be determined on its own particular facts. Estate of Bjors, 1951, 103 Cal.App.2d 361, 371, 229 P.2d 468. An informal or unattested document may be incorporated by reference in a will, whether holographic or attested, 'so long as the reference is unmistakable or with the aid of extrinsic proof can be made so.' Estate of Smith, 1948, 31 Cal.2d 563, 567, 191 P.2d 413, 416. If the intent of the testatrix was to make the terms of the contract a part of the will, then there is proper incorporation. Estate of McCurdy, 1925, 197 Cal. 276, 240 P. 498; Estate of Wunderle, 1947, 30 Cal.2d 274, 181 P.2d 874; 53 Cal.Jur.2d p. 303, § 71.

Here the reference to the contract in the codicil is clear and definite and evidences the unmistakable intention of the testatrix that the contract is to be a part of her will and that the devise in the original will is subject to the terms of the contract. The contract provides, in effect, that appeallant agrees to make a will leaving that appellant agrees to make a will leaving as therein designated, and while appellant 'reserves the right to change his will from time to time,' he nevertheless 'agrees that at all times during his lifetime he will have a will in existence leaving the same property as herein provided.' In effect, appellant agrees to accept a life estate. The codicil positively states that the property is left to him 'to comply with the terms of a written agreement' and 'is subject to the provisions of said agreement that Clinton will bequeath said property as provided in said agreement.'

Whenever there is in a will a devise in qualified terms but followed by a direction for the devisee to leave the property to a third person, it creates a life estate in the devisee, with remainder over to the third person. See Estate of Briggs, 1921, 186 Cal. 351, 199 P. 322; Estate of Tooley, 1915, 170 Cal. 164, 167, 149 P. 574. Such is the situation here where the terms of the contract, being a part of the will, so provide. Where the instrument as a whole provides a limitation over, a life estate may be created even if it is not expressly declared. See Estate of Smythe (1955) 132 Cal.App.2d 343, 351-353, 282 P.2d 141.

Nor do the terms of the 'contract' part of the will support the contention that the devise over to the remaindermen is simply 'what remains unexpended' by appellant. The very inclusive scheme of disposition to be made by him of the property in which his issue shall share no more than the issue of his brothers, indicates that he is to have the property only for use during his lifetime, and while he may sell it (thereby not binding him to operate it for the period of his lifetime) the proceeds (other than his life estate in such proceeds) must go as directed by the testatrix.

While it is true that the original will (considered alone) leaves the property to appellant in fee simple, it must be remembered that the only will which is effective is the one existent on the date of the death of the testatrix. On that date the original will was no longer completely effective, because of the codicil which modified it. No question is raised, nor can one be, that testatrix did not have the right to modify the original will, as long as she did not violate her obligation under the contract to leave appellant a life estate. She was under no obligation to leave him a fee simple estate. Whatever her reason for appearing to leave appellant a fee simple estate in the original will, she certainly did not do so in the codicil. If deceased, when she made the original will, intended to leave appellant a greater interest than she had agreed to leave him, nevertheless she had the...