Buchman v. Morse

Hamlin K. Buchman, executor of the estate of his late brother, Harry G. Buchman, has filed two appeals. One is taken from an order decreeing partial distribution in favor of Claire Morse, decedent’s former wife, hereinafter termed respondent; the other is from an order settling certain accounts filed by appellant. Various assignments of error arising in connection with the disposition of the several proceedings herein are also presented for review and will be adverted to subsequently.

Respondent became the wife of the decedent on November 7, 1949. No children were born of this marriage. By the spring of 1951, marital differences and difficulties had developed between the spouses to a point which impelled decedent

any and all assignments, quitclaims, changes of beneficiary and other instruments and forms which Husband may request to vest in Husband the complete ownership of said insurance policies, both legal and equitable, including the right to change the beneficiaries thereof free and clear of any claim, right, title or interest of Wife.”

“7. Each party hereto waives and relinquishes, except as in this agreement otherwise provided, any and all rights which he or she may now or hereafter have to succeed to the estate of the other; and each hereby expressly waives and relinquishes any and all rights to act as personal representative or to nominate a personal representative of the estate of the other, or to have set aside to him or to her any of the property of the other as community property, or to have set aside to him or to her by any Court having jurisdiction of any portion of the estate of the other any homestead or other property which might be set aside to a surviving husband or widow as exempt property, or to demand any family allowance, or any other right, benefit or emolument from the estate of the other, and both parties hereto agree that each will never exercise any right to select a homestead from the property of the other during his or her lifetime.

“8. It is expressly agreed between the parties hereto that this instrument is a full, complete and final memorandum of the agreement of the parties hereto covering all matters in connection with the division of the community property of the parties and all rights and claims of each and both of the parties therein or thereto, and in or to the separate property of either party, and of each and every claim of every character whatsoever one against the other, and that no agreement exists between the parties other than as herein specifically set forth; and it is hereby covenanted and agreed by each of the parties with the other that he or she will not assert or claim against the other any right or claim in or to any property of the other, except under the terms of this agreement, and except as provided by the terms and provisions of this agreement, and will not assert against the other except as herein otherwise specifically provided, any claim for alimony, maintenance or support, costs, attorneys’ fees or any other claim whatsoever by reason of their marital relationship or otherwise, or in any action for divorce or separate maintenance, or in any other action or proceeding involving the marriage state or any obligations thereof wheresoever brought. . . .

“10 (b) Husband agrees to pay and hold Wife harmless

the will annexed, upon the estate of the other ... It is the true intent and purpose of this agreement that the parties hereto have settled and forever adjusted, and that they do hereby settle and forever adjust, by and between themselves, all present and future property rights of every kind and nature, whether community or separate, wh'eresoever the same is or may be located and all other rights and claims which either may have or claim to have against the other, so far as their property rights are concerned, and in addition thereto that the said parties hereto have settled and adjusted, and do hereby settle and adjust, and forever determine, all of their respective rights, to, of and in any inheritance the one from the other, respectively, or in or to the estate of either.’ ” (Emphasis added.)

In deciding that the surviving widow was entitled to a bequest under her deceased husband’s will, our Supreme Court stated (pp. 220-221): “. . . In this case the parties by the terms of their agreement did make reference and contract with relation to the will or wills of both or either of them, whether then existing or thereafter to be made. But the agreement in relation to such wills was not unlimited. The agreement of each party was, first, not to oppose the probate of the other’s will; second, not to contest or oppose such will; and third, not to apply for letters of administration or letters of administration with the will annexed upon the estate of the other. Both parties agreed that by said contract they had settled, adjusted and forever determined ‘all of their respective rights to, of and in any inheritance of the one from the other, respectively, or in or to the estate of either. ’ Reading the terms of the contract as thus limited, it took away from appellant all right or claim to any interest in the property of her husband either by virtue of her status as wife or widow or as heir of her husband. But, as if by intention, there is a total failure to set forth in the contract any renunciation of the right to accept and receive future gifts to the one from the other whether by way of gift inter vivos, by devise, or by request. As applied to such gift we find in the agreement no basis for an estoppel against appellant with respect to the legacy claimed in the will. . . .” (Emphasis added.)

In Grimm v. Grimm, supra, the court had occasion to give more elaborate expression to the rule of the Crane case. The question there presented was whether the property settlement agreement negated the wife’s right to take the proceeds from

In Estate of Hadsell, 120 Cal.App.2d 270 [ 260 P.2d 1021 ], the decedent willed all her property to her husband. After the execution of the will, decedent entered into a property settlement agreement with her husband which read in part: “It is agreed that neither party will at any time hereafter assert any right, title or interest as heir-at-law, or otherwise of the other to any property devised or bequeathed by such will, or as against the estate of the other, should the other die intestate, and all claims as such heir, or as surviving husband and wife respectively, and the right to contest or

It is to be borne in mind that decedent executed the will under which respondent is claiming on June 29, 1951, while negotiations for a property settlement were in progress. He had then available an alternate form of will under which respondent would take nothing. This form he never executed. After the property settlement agreement was signed, he did not revoke the testamentary disposition in respondent’s favor.

Applying the above criteria to the instant case leads inevitably to the conclusion that the trial court correctly interpreted the instrument as not extinguishing respondent’s right to take anything the testator might voluntarily leave her by will. The agreement is comprehensive as to the existing property rights of the parties, and plainly preserves to each complete freedom with respect to the disposition of the segregated property. The crucial paragraphs are 5(e), 6, 7, and 8, set out supra. Their ultimate effect is to eliminate the future obligations of the testator growing out of the conjugal relationship ; but in no way do they inhibit his privilege of making respondent an object of his testamentary bounty or abridge her eligibility to receive such gift. The contract does disclose, on the part of each, a relinquishment of the right (1) to act as personal representative of the other’s estate; (2) to have set aside any of the other’s property as community property or to declare a homestead thereon; (3) to demand

Appellant urges that particular language in paragraph 7, when construed with the other paragraphs alluded to, must necessarily exclude the respondent from inheriting by will. He focuses his emphasis on the clause appearing near the close of the paragraph, following the recitation of various express waivers, which reads “or any other right, benefit or emolument from the estate of the other” as the fulcrum for this argument. However, the tenor of the authorities we have previously cited, militates fatally against appellant’s construction. For it is firmly established that general expressions or clauses are not to be construed as a relinquishment or divestment of an expectancy to take by will unless that is the clear and unmistakable import of the language employed. (Grimm v. Grimm, 26 Cal.2d 173 , and cases cited at pages 176 and 177 [ 157 P.2d 841 ].) As the Grimm case states in exposition of this rule, “expectancies under a will . . . are regarded as waived only when it appears that the attention of the parties was directed to such expectancies and their intention to disclaim future rights that might develop from such expectancies was made clear in the contract.” But there is nothing in the record to remotely suggest that respondent ever knew that decedent had included her in .the testamentary scheme of his will, or that her attention was directed to such possibility. The agreement contains no express reference to such expectancy, and it does not show with any quantum of reasonable certitude that respondent was, by necessary implication, waiving her right to take by will. The general language relied on by appellant does not express such intent with the certainty the law requires for the renunciation of an expectancy. Furthermore,

In the light of these circumstances, to hold that a contract by necessary implication was intended to nullify an antecedent will in the possession of, and subject to the absolute control of its maker, where the proper construction of its language does not so require, would be to incorporate therein a specific term which the parties have not included. To do so would constitute an unwarranted departure from the principles governing cases of this character. (Grimm v. Grimm, supra; Estate of McNutt, supra; Estate of Minier, supra; Estate of Jones, 118 Cal. 499 , 502 [ 50 P. 766 , 62 Am.St.Rep. 251 ].)

The principal cases relied on by appellant are clearly distinguishable, and reinforce the views here expressed. In Sullivan v. Union Oil Co. of Calif., 16 Cal.2d 229 [ 105 P.2d 922 ], the 'husband had an interest in an “Employees’ Provident Fund” maintained by his employer, to which he contributed by monthly deductions from his salary, and which provided for a benefit payable at death to the wife. This “Provident Fund” was expressly mentioned in a property settlement between husband and wife dividing all their property. As pointed out in Grimm v. Grimm, supra, (p. 180) in distinguishing the case: “Under the facts of that ease all interests of the wife in the fund were regarded as part of her interest in the community property and as such released [by the agreement] in favor of the husband.” In Meherin v. Meherin, 99 Cal.App.2d 596 [ 222 P.2d 305 ], a husband and wife made a property settlement agreement in which the wife released to her husband her interest in a certain policy which was specifically designated in the instrument. It was therefore held her rights terminated even though the husband had not executed a formal change of beneficiary

Appellant also seeks review of the order vacating the setting of his petition to determine heirship, contending he was thereby denied a trial by jury to which he was entitled by section 1081 of the Probate Code. He also assigns as error the court’s ruling in denying his motion to be relieved from waiver of a jury trial in the hearing of respondent’s petition for partial distribution. In brief recapitulation of the events leading up to these rulings, respondent filed her petition for partial distribution on January 26, 1953. Appellant filed his answer thereto on February 13, 1953. By way of affirmative defense, appellant set up the property settlement agreement, alleging that thereby respondent was not entitled to take under the will and was estopped to disclaim the validity of the agreement by virtue of having allegedly accepted its benefits. This petition was first set for hearing on February 13, 1953, but was continued from time to time until March 10, 1953, when it was transferred with the other pending matters, for determination by Judge Condee. The various matters were continued until the following day, when the parties entered into the stipulation concerning the mode of conducting the hearing and the application of the evidence to all of the pending matters. When the court thereafter concerned itself with the question of appellant’s competency to act as executor, the other proceedings were continued until April 6th. On April 2, 1953, appellant filed his petition to determine heirship and prayed for jury trial. This was 65 days after service of citation on him of respondent’s petition for partial distribution, 48 days after the matter was first set for trial, and about three weeks after the hearing had commenced and stipulations made as to the conduct of the proceedings.

We may pause here to point out that the petition for partial distribution and the answer thereto embraced all the issues involved in the heirship proceeding. A petition for partial distribution implements the policy of the law favoring the earliest possible delivery of inherited property to legatees

In proceedings for partial distribution, either party has a right to demand a trial by jury of any issues of fact raised therein. (Estate of Baird, 173 Cal. 617 , 623 [ 160 P. 1078 ]; Estate of Perkins, 21 Cal.2d 561 , 567 [ 134 P.2d 231 ]. From the record, it is clear that appellant's former counsel waived any right to a trial by jury by failing to demand a jury “at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation ...” (Code Civ. Proc., § 631, subd. (4); Estate of Henshaw, 68 Cal.App.2d 627 , 638 [ 157 P.2d 390 ]; Glogau v. Hagan, 107 Cal.App.2d 313 , 316-319 [ 237 P.2d 329 ].) As late as March 11th, the record is clear that appellant was prepared to proceed without a jury and that this waiver of jury had been consciously and deliberately effected. The belated interjection of appellant’s petition to determine heir-ship coupled with a demand for a jury trial (Prob. Code, §§ 1080-1081) did not compel a suspension of the proceedings and a trial of the matter by jury thereafter. (Estate of Stephenson, 65 Cal.App.2d 120 , 124 [ 150 P.2d 222 ].) When the motion to vacate the setting of this petition was before Judge Hansen on May 14, 1953, the following situation prevailed : The partial distribution proceeding was set for further hearing four days later; the petition to determine heirship, filed some two months after service of respondent’s petition for partial distribution, constituted a duplication of the issues already before the court in the distribution proceeding and a jury had been deliberately waived in the latter proceeding by appellant. We perceive no abuse of discretion on the part of Judge Hansen, in the light of these facts, in vacating the setting and ordering the petition “off calendar.”

Furthermore, appellant was not prejudiced in this instant situation by proceeding without a jury. The question here involved is one of law, viz., the interpretation of an unambiguous written property settlement agreement. As has been pointed out previously where, as here, there is no evidence to indicate that the attention of the respondent was directed to an expectancy under a will and no clear language appears in the settlement contract suggestive of an intention to disclaim such an expectancy, the agreement will not be construed as a renunciation of the right to take under the will. (Crane v. Crane, supra; Grimm v. Grimm, supra; Thorp v. Randazzo, supra.) In such case, it is the duty of the court to carry out the solemn directions contained in the will without detracting from the provisions therein made.

Appellant charges that he was denied due process on the theory that the trial judge’s conduct was arbitrary and

These conclusions effectively dispose of appellant’s next contention that “the notice of appeal from a consolidated trial, in which part is reviewable on appeal, removes the jurisdiction of the superior court and the trial judge should have therefore stayed all of the proceedings until after the decision on appeal.” This proposition is not here applicable because, as above pointed out, the several matters were to be separately and individually decided on the evidence relevant to each. Hence an appeal from the removal order could not possibly serve to deprive the superior court of jurisdiction to consider the petition for partial distribution while the appeal from the former order was pending. (Code Civ. Proc., § 946; 3 Cal.Jur.2d 682, § 193. See also Estate of Thayer, 1 Cal.App. 104 , 106 [ 81 P. 658 ].) Appellant’s error lies in his mistaken belief that all the proceedings before the probate court were truly consolidated. As disclosed by the record, such is not the fact. Hence his asserted proposition is wholly without any appropriate factual foundation. Appellant relies on Evans v. Superior Court, 107 Cal.App. 372 [ 290 P. 662 ]. Examination of that ease, however, discloses that it does not support his proposition.

Appellant argues that the court erred in ordering partial distribution to petitioner on the ground that " The Estate was not in such a shape as to permit the partial distribution at the time.” Section 1001 of the Probate Code authorizes the court to order partial distribution if it appears that the estate “is but little indebted”; that the state has consented thereto in writing; and that the distribution may be made “without loss to the creditors or injury to the estate or any person interested therein.” The section further provides that when the time for presenting claims has expired and “all uncontested claims have been paid or are sufficiently secured by mortgage or otherwise, and the court is satisfied that no injury can result to the estate, the court may dispense with the bond.” Whether an estate “is but little indebted” or partial distribution can be made “without loss to the creditors or injury to the estate or any person interested therein” are questions of fact to be determined by the trial court upon a comparison of the value of the estate with the amount of debts,

Appellant further complains that no bond was required of respondent. However, the time for filing claims had passed. There was ample security left in the estate. In discussing the necessity of a bond in such circumstances it was pointed out in the Morelli case, supra (p. 42), that “The court must require a bond if the time for presentation of claims has not expired, but after that time it may dispense with the bond if there is sufficient security left in the estate. ’ ’ The facts herein recited justify the implied finding that “no injury” could result “to the estate” by dispensing with the bond. (Prob. Code, § 1001.) On this point we may say, as did the court in Estate of Johnson, 218 Cal. 501 [ 23 P.2d 1012 ], that “The question of a bond on partial distribution, under the facts here, was one of discretion and we see no showing of an abuse thereof.” (P. 504.)

As his final contention, appellant assigns as error the court’s disposition of three items in connection with the settlement of accounts: (1) He complains of the order requiring him to reimburse the estate forthwith in the amount of $6,000 despite the fact that his fees as executor would exceed this amount. This determination was correct. It was conceded

The order decreeing partial distribution is affirmed. The order settling accounts is modified to include the following: “Hamlin K. Buehman is hereby authorized to credit himself for funeral expenses disbursed by him personally the sum of $2,515.00” and, as so modified, the order is affirmed. The costs on appeal are apportioned as follows: Appellant 90 per cent and respondent Claire Morse 10 per cent.

Moore, P. J., and McComb, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 25, 1955. Carter, J., was of the opinion that the petition should be granted.