Torregano's Estate, In re

• Decision Date: 24 May 1960
• Citation: 5 Cal.Rptr. 137,352 P.2d 505,54 Cal.2d 234
• Court: California Supreme Court
• Parties: , 352 P.2d 505, 88 A.L.R.2d 597 ESTATE of Ernest J. TORREGANO, Deceased. Gladys Torregano STEVENS, Appellant, v. Alfred TORREGANO, Respondent. S. F. 20122.

Page 137

5 Cal.Rptr. 137

54 Cal.2d 234, 352 P.2d 505, 88 A.L.R.2d 597

ESTATE of Ernest J. TORREGANO, Deceased.

Gladys Torregano STEVENS, Appellant, v. Alfred TORREGANO, Respondent.

S. F. 20122.

Supreme Court of California, In Bank.

May 24, 1960.

Rehearing Denied June 22, 1960.

Bergen Van Brunt, San Francisco, for appellant.

Henry B. Nathan, San Francisco, amicus curiae on behalf of appellant.

Wallace, Garrison, Norton & Ray and Maynard Garrison, San Francisco, for respondent.

PETERS, Justice.

Plaintiff appeals from a decree dismissing her petition for determination of heirship. The trial court held that, as a matter of law, plaintiff is not a pretermitted heir of Ernest J. Torregano, deceased.

Torregano, a San Francisco attorney, died on January 18, 1954. His will was dated June 25, 1947. It was duly admitted to probate on February 5, 1954. By the terms of that will decedent left the bulk of his estate to his brother, Alfred Torregano, the defendant herein. Plaintiff was not specifically named in the will, nor was she mentioned in any manner unless the trial court was correct in holding that she is a person who is included in the general class mentioned in clause Thirteenth of the will. Clauses Second, Thirteenth and Fourteenth (the only portions of the will involved in this appeal) read as follows:

'Second: I declare that I am a widower and that I have no children, issue of my marriage; that my deceased wife's name was Pearl C. Torregano; that my entire estate is separate property. * * *

'Thirteenth: I give, devise and bequeath to any person or persons who may contest this my Last Will and Testament, or assert any claim to share my estate by virtue of relationship or otherwise the sum of One Dollar ($1.00) each in settlement of their said claim or claims.

'Fourteenth: I give, devise and bequeath all the rest and residue of my estate of whatsoever kind or nature and wheresoever situate which I may die seized and possessed of, to my dearly beloved brother, Alfred Torregano, * * *.' There follow provisions for contingent residuary beneficiaries in the event of Alfred's prior death.

On January 8, 1957, the estate then being in the process of probate, plaintiff filed a 'Petition for Decree Determining That Gladys Torregano Stevens is a Pretermitted Heir,' therein alleging that she is the lawful child of decedent and Viola Perrett, that she was not provided for by settlement or advancement, that she was not mentioned in decedent's will, that such omission was unintentional, and that she is entitled to the entire estate under the provisions of Probate Code, §§ 90 and 91. ¹ On February 1, 1957, defendant filed his statement as beneficiary in opposition to plaintiff's petition, and subsequently filed a demand for a jury on the hearing of the petition. ²

On April 18, 1957, defendant filed motions for summary judgment and dismissal on the grounds that the petition does not state facts sufficient for a determination that plaintiff is a pretermitted heir, that testator's will provides for her in the sum of $1, and that the petition is uncertain, unintelligible and ambiguous. ³ Plaintiff filed two affidavits in opposition alleging, among other things, the facts that she is the legitimate daughter of decedent and Viola Perrett Torregano, who were husband and wife, and that she is the sole surviving child of decedent. After argument, both motions were denied by the law and motion department on May 14, 1957.

On May 15th the matter came on for trial, by jury, in another department of the same court. Before any testimony was taken defendant moved the court, orally, for a trial of special issues, and also for judgment on the pleadings. Both motions were ordered submitted, and the matter proceeded to trial. Both parties produced witnesses and documentary evidence which, because of the nature of the ultimate action of the trial court, need not be set forth in detail. It is sufficient for the purposes of this opinion to state that plaintiff produced evidence from which the jury, if it believed the evidence, could have found that the following facts were true:

Testator, Ernest J. Torregano, was born November 21, 1882, a member of a fairly large Negro family. During 1902 or 1903 he married Viola Perrett, a member of his minstrel troupe, and brought her to live at his mother's house in New Orleans, Louisiana. On February 7, 1904, plaintiff, Gladys Torregano Stevens, was born the issue of such marriage, in the home of her grandmother (decedent's mother). When plaintiff was less than a year old testator (having established his family in a separate residence) took a position as a porter on a railroad train running between New Orleans and San Francisco, California. For the next year or more he continued in such work, residing with his wife and child during the periods of stopover in New Orleans. He then found permanent work in Sam Francisco, but did not immediately terminate his infrequent visits to his family. Some time after the earthquake and fire of 1906 he took up the study of law, and 'commenced to pass for white.' During this period, he sent for his brother Alfred, presumably the only other member of his family so capable of 'passing,' and the two of them ultimately succeeded. Testator ultimately became a successful member of the bar in San Francisco. Prior to 1915 testator had ceased his infrequent visits to New Orleans, but maintained contact with various members of his family by correspondence. During this period, he maintained two addresses in San Francisco, one for a 'white' establishment and the other as an address to receive his mail from his colored family. During the year 1915 (or thereabouts), testator's mother and his half-brother, Edgar, visited him in San Francisco. On that occasion testator's mother told him that his wife and daughter, the plaintiff, were dead. On her return to New Orleans, testator's mother told the wife and child that testator was dead. On that date plaintiff was a child of tender years, incapable of producing issue, which testator then knew. The testator never had any other issue. After the date of the visit from his mother there was no further contact (by mail or otherwise) between testator and his wife (Viola) or plaintiff, although there was subsequent contact between testator and at least one of his sisters. On March 15, 1917, testator married Pearl C. Bryant, of Oakland, California, the marriage contificate indicating that he and his parents were white. ⁴ In 1922 Viola remarried (presumably relying upon the misinformation given to her by testator's mother). Pearl died prior to June 25, 1947.

The will was introduced into evidence. From all of the foregoing facts, including the subsequent remarriage, the fact that testator was a successful practicing attorney who was versed in the law, and the fact that the will made no specific mention of plaintiff, and, in fact, inferred lack of any issue, there is no doubt that a jury could have found if such evidence is admissible and relevant under the law that testator, when executing his will, believed plaintiff to have been dead for many years, and that she had died at a time when she could not possibly have had issue.

Much of the evidence upon which the foregoing statement is based was received over the objection of defendant. He took the attitude that extrinsic evidence was inadmissible. The trial court admitted all of the evidence subject to such objection which it took under submission along with the motions made at the commencement of the trial.

After all the evidence had been received, but prior to giving the case to the jury, the trial judge entered a minute order and a memorandum opinion, both granting defendant's 'motion to dismiss.' ⁵ The court then entered its decree, by the terms of which it held, in effect, that, as a matter of law, plaintiff is not a pretermitted heir of testator, and is entitled as a claimant to receive but the sum of $1 as mentioned in paragraph Thirteenth of testator's will. It also held that defendant is entitled to the residue of the estate, after payment of all specific bequests. From this decree, and from the denial of her motions for new trial and for order vacating the decree, plaintiff has appealed.

The reasoning behind the decree (both as stated by the trial court in its opinion, and as contended by respondent on this appeal) is that even though Probate Code, § 1081, provides for a trial of the factual issues by jury, when the rights of the parties are wholly determinable as a matter of law, the court must remove the case from the jury, and make such final determination as a matter of law. It is then contended that this case presents solely a question of law for the reason that extrinsic evidence is inadmissible to prove testator's intent, and that the language of the will, standing alone, indicates an intention to omit provision for his daughter. In urging this theory, both the trial court and respondent have relied upon the language of several California decisions interpreting Probate Code, § 90. These authorities are discussed below. Although it is true that the language found in some of those cases appears to hold as respondent claims, when analyzed they are found not to be applicable to the facts of this case.

We agree with the claim that the court acts properly in taking the case from the jury when the issues are determinable by a sole question of law. On the other hand, it is not contended that the court may so act if the case requires determination of one or more factual issues. The single question thus posed in this case is whether, under all of the circumstances presented, there were factual issues which required the case to go to the jury. We are of the opinion that this question must be answered in the affirmative. We are of the further opinion that such determination requires conclusions which are, to some extent, matters of first impression.

Our first such...