Zapettini's Estate, In re

• Decision Date: 17 December 1963
• Citation: 35 Cal.Rptr. 844,223 Cal.App.2d 424
• Parties: In re ESTATE of William J. ZAPPETTINI, Deceased. Thelma D. ZAPPETTINI, Petitioner, Objector, Appellant and Respondent, v. Norma FERROGGIARO and Hazel Suacci, Petitioner, Objector, Respondent and Appellant. Civ. 21367.
• Court: California Court of Appeals Court of Appeals

Page 844

35 Cal.Rptr. 844

223 Cal.App.2d 424

In re ESTATE of William J. ZAPPETTINI, Deceased.

Thelma D. ZAPPETTINI, Petitioner, Objector, Appellant and Respondent, v. Norma FERROGGIARO and Hazel Suacci, Petitioner, Objector, Respondent and Appellant.

Civ. 21367.

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

Dec. 17, 1963.

Rehearing Denied Jan. 13, 1964.

Edward K. Allison, San Francisco, for Thelma D. Zappettini.

John A. Sullivan, Menlo Park, DiMaria, Daschbach & Donovan, William J. Moses, Palo Alto, for Norma Ferroggiaro and Hazel Suacci.

SHOEMAKER, Presiding Justice.

Thelma D. Zappettini, the widow of the decedent, and Norma Ferroggiaro and Hazel Suacci, the sisters of the decedent, have filed cross-appeals from a decree determining heirship.

The decedent, William J. Zappettini, died on May 2, 1961, leaving as his sole heirs-at-law his widow, Thelma D. Zappettini, and his two sisters, Norma Ferroggiaro and Hazel Suacci. On May 23, 1961, his will, dated June 13, 1958, was admitted to probate. Pursuant to the fourth paragraph of the will, the testator gave, devised and bequeathed one-half of his entire estate to his wife, subject only to the condition that she survive him for six months, and the other one-half in equal shares to his two sisters. In the seventh paragraph of the will, the testator stated that the bulk of his estate consisted of the land, buildings and business assets known as the Mar Vista Riding Academy; that his wife was thoroughly conversant with the operation of this business, was competent to manage the same, and might desire to retain the business after his death as her means of livelihood; that '[i]n order to facilitate this,' his wife should have the right to elect, within six months of his death, to have said business distributed to her as her one-half of the estate; that in the event that she did so elect and that the estate, exclusive of such business, was not sufficient in value to pay the other legatees the one-half of the estate left to them, his wife should then take the business, land, buildings and equipment in fee, but should give to the other devisees and legatees her personal note or notes secured by a deed or deeds of trust on the real property on which the business was situated, for the payment of 'their share of my estate as hereinbefore devised and bequeathed to them'; that in the event such notes were given, they should be installment notes in such installment amounts as could reasonably be met by his wife; that his wife should have the 'privilege' of paying off the balance of said notes at any time that she was able. The fifth paragraph of the will provided as follows: 'I have purposely made no provision for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this Will or not mentioned herein, shall contest this Will or object to any of the provisions hereof, I give to succ [sic] person so contesting or objecting, the sum of ONE DOLLAR ($1.00) and no more, in lieu of the provision which I have made or which I might have made herein for such person so contesting or objecting.'

On October 20, 1961, Thelma D. Zappettini (who will henceforth be designated 'the widow') filed a notice electing to take the riding academy as her share of the estate under the decedent's will. On May 31, 1962, Norma Ferroggiaro and Hazel Suacci (who will henceforth be designated 'the sisters') filed a petition for determination of heirship. The sisters therein alleged that the decedent, pursuant to the fourth paragraph of his will, had devised and bequeathed his entire estate one-half to his wife, and one-half in equal shares to his sisters; that the provisions of the seventh paragraph of the will were 'uncertain and inconsistent in their purport and tenor' with the provisions of the fourth paragraph; that the provisions of the seventh paragraph were 'not binding,' 'not valid and of no force or effect whatsoever.' The sisters prayed that the court determine and declare the rights of all persons in the estate and the amount of each distributee's interest.

On June 11, 1962, the widow filed a statement setting forth her interest in the estate. She therein alleged that the seventh paragraph of the will was 'valid, unambiguous and enforceable in accordance with its terms'; that she had duly elected to exercise her rights thereunder and was accordingly entitled to have the assets comprising the riding academy distributed to her subject to the other terms and conditions specified in the seventh paragraph of the will. She further alleged that the action of the sisters in filing their petition for determination of heirship constituted a 'contest' or an 'objection' to the provisions of the will within the meaning of the fifth paragraph of the will.

The court found that the actions of the sisters did not constitute a contest of the will or an objection to its provisions within the meaning of the fifth paragraph of the will. The court further found that the seventh paragraph of the will was valid and that the widow had duly elected to exercise her rights thereunder. The court accordingly ordered that the assets comprising the riding academy should be distributed to the widow and that all other assets in the estate should be distributed in equal shares to the sisters; that immediately upon distribution of the assets comprising the riding academy, the widow should execute and deliver to each of the sisters a promissory note in a principal amount equal to one-quarter of the difference between the adjusted value of the assets comprising the riding academy and the other assets in the estate; that each of said notes should be secured by a deed of trust on the real property upon which the academy was located; that the principal amount of the notes should be payable in installments which the court should determine to be reasonable in view of the widow's ability to pay; that said notes should bear no interest other than seven per cent per annum on any installment which was not paid on the due date; that the widow should have the right to prepay all or any part of the unpaid principal amount at any time or times; that the unpaid principal amount should become due and payable in the event the widow sold the riding academy.

The widow appeals from that portion of the decree determining heirship which held that the sisters had not violated the fifth paragraph of the will. The sisters appeal from that portion of the decree setting forth the terms of payment and the rate and amount of interest to be paid upon the promissory notes.

We deal first with the widow's appeal. It is settled that no-contest clauses are valid and enforceable in California (Estate of Hite (1909) 155 Cal. 436, 440-441, 101 P. 443, 21 L.R.A.,N.S. 953; Estate of Howard (1945) 68 Cal.App.2d 9, 11; Estate of Mathie (1944) 64 Cal.App.2d 767, 776, 149 P.2d 485; Estate of Markham (1941) 46 Cal.App.2d 307, 314, 115 P.2d 866); that they should be strictly construed (Lobb v. Brown (1929) 208 Cal. 476, 281 P. 1010; Estate of Fuller (1956) 143 Cal.App.2d 820, 824, 300 P.2d 342).

However, it has also been determined that when the action of the legatee is merely one to determine the true construction of the will, or any of its parts, the action cannot be held to breach the...