McQuarrie v. Kuttler

Appeals by Bertha McQuarrie and Earl Hayter from Decree Determining Interests in Estate and Order Denying Petitions for Preliminary Distribution. Ethel May Kuttler died on February 28, 1956, leaving as her only heirs three grandchildren, Joan Perry Kuttler, William Brent Kuttler, and Nancy Ann Kuttler, the issue of her two deceased sons. The mother of one of them is Vera R. Miller and Michael Kuttler is the mother of the other two. A sister, appellant Bertha McQuarrie, and two brothers, Robert Evans and

All appeals were heard together in this court which, in Estate of Kuttler, 160 Cal.App.2d 332 [ 325 P.2d 624 ], affirmed the denial of Hayter’s petition for letters testamentary and reversed the trial court’s order in all other respects with instructions to admit to probate the holographic document of February 16, 1956, to vacate the order appointing Kuttler as administrator, and to make an order granting to appellant MeQuarrie letters of administration with the will annexed. The Supreme Court having denied a hearing, the lower court complied with these instructions and MeQuarrie and Hayter thereafter executed and filed a document entitled Exercise of General Power of Appointment and Authorization for Distribution in Accordance Therewith. By said instrument, appellants exercised the general power of appointment conferred upon them by decedent’s will in favor of themselves, and conveyed to themselves, as tenants in common, equal undivided interests in the whole of decedent’s estate, both real and personal property. Thereafter they filed petitions for preliminary distribution asking the court to distribute to them, as tenants in common, undivided one-half interests in $20,000 cash and a parcel of real property appraised in the inventory at $11,000.

The respondent grandchildren, represented by their guardian, Michael M. Kuttler, filed written objections to both petitions. They also filed a petition for a decree determining interests in the estate, alleging that decedent by her will conferred upon MeQuarrie and Hayter a power of appointment over her “belongings,” but that said term “belongings” as used by decedent in her will, was intended to and does refer only to her tangible personal property; that decedent died intestate as to her real property and intangible personal property, including stocks, bonds, notes and cash, and that said purported exercise of the power of appointment was invalid

Appellants then filed their respective statements of claim of interest in decedent’s estate. Both appellants alleged that the power of appointment conferred upon them by will embraces decedent’s entire estate; that having exercised the power in their own favor, they are entitled to have decedent’s entire estate distributed to them. All matters were heard together.

The trial court found in substance that it appeared from decedent’s will when read in the light of the surrounding circumstances, that decedent intended to and did refer only to her tangible personal property when she used the phrase “my belongings” in her will. The court concluded that decedent died intestate as to her real property and intangible personal property, and that respondents, as her sole heirs at law, succeed thereto. A Decree Determining Interests in Estate, etc., was entered accordingly. McQuarrie and Hayter have appealed from the whole of that judgment and said appeal is now before us for disposition.

In our former decision we held that the will conferred a power of appointment upon McQuarrie and Hayter with respect to decedent’s entire “belongings”; that such a power is valid in this state; that the donee of a general power of appointment may exercise it in his own favor; that such a power in legal effect gives the donee an absolute ownership of the property. At page 342 it was said: “What Mrs. Kuttler obviously desired was that her donees have the power to distribute her ‘belongings’ if she should die before executing a new and formal will. To say that she wanted something less is to deny the obvious. Of course, the fact that she expected to make a later and more formal will would not detract from the testamentary character of the one in question. . . . Upon the issue of whether the writing should be probated, it is unnecessary to consider whether the term ‘belongings’ as used therein would include decedent’s real estate, because a document may be a will although it disposes of only part of the testator’s property. Intestacy as to a portion of the decedent’s estate is a familiar situation. However, this question must be determined in connection with the appeals involving the right to letters.” At page 343: “The conflicting petitions of Mc-Quarrie and of Michael M. Kuttler, as guardian, for letters of administration require solution of the question whether the phrase ‘my belongings’ embraces decedent’s entire estate,

It is argued that the testimony of attorney Beatson and appellants MeQuarrie and Hayter was properly disbelieved on the ground of interest in the ease. Let that be conceded for the purpose of further discussion. Rejection of their testimony does not create evidence to the contrary of what is thus discarded (Estate of Kuttler, supra, at page 337; Estate of Bould, 135 Cal.App.2d 260 , 264 [ 287 P.2d 8 , 289 P.2d 15 ]; Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733 , 742 [ 314 P.2d 33 ]; Cooper v. Cooper, 168 Cal.App.2d 326 , 330 [ 335 P.2d 983 ].) There still remains the declaration of the will that testatrix does not want the daughters-in-law or the grandchildren to “have one thing or one cent of what I have” (emphasis added), and in order to effect that result she directs “them [Hayter and MeQuarrie] to dispose of my belongings as they see fit.” Certainly this, standing alone, means that they in good conscience shall not give any of the belongings to the grandchildren or their mothers. The phrase of the will “I do not want [them] to have one thing or one cent of what I have” (emphasis added) undoubtedly reflects the determination expressed to her attorney, Mr. Beatson, in their last conversation as related by him: ‘1 [W] e have a front counter in the front office and she stopped at the counter and she said, to the best of my recollection, ‘I don’t know why I should have so much trouble. I have lost both of my sons, one grandchild doesn’t know me and I never see the other two.’ She said, ‘I lie awake nights wondering what I have ever done to have so much trouble and can’t sleep.’ ” Also: “You have many blessings, if you will count your blessings you will sleep. And she said,

It is argued by respondents and the lower court that this power running to Hayter and MeQuarrie cannot mean that they may appropriate the “belongings” to themselves, that testatrix would have said so if she intended that result, a gift to them. This overlooks a cardinal principle stated in our former opinion: (P. 335) “It is also well to bear in mind the fact that the search for a testatrix ’ intention does not involve a determination that she understood the legal effect of the directions found to have been expressed by her in the will. The effect of what she has provided is governed by substantive law. If she makes a bequest which violates the rule against perpetuities (Estate of Fair, 132 Cal. 523 [ 60 P. 442 , 64 P. 1000 , 84 Am.St.Rep. 70 ]) or attempts to immunize a trust beneficiary’s income from claims of his creditors to an extent not recognized by statute (Canfield v. Security-First Nat. Bank, 13 Cal.2d 1 [ 87 P.2d 830 ]) or to defeat the claim of the Alien Property Custodian to a future interest (Estate of Zuber, 146 Cal.App.2d 584 [ 304 P.2d 247 ]), that intention, though plainly shown, cannot prevail.

“Volume 57, American Jurisprudence, section 1134, page 729: ‘Contravention of Buie of Law or Policy.—Although all the arbitrary rules and canons of testamentary construction are subordinate to the intention of the testator, it is universally recognized that the testatorial intention, even where clearly ascertainable, must yield to an established rule of law or public policy if it is in conflict therewith. Common examples of situations in which the testator’s intention is overcome upon this theory are afforded by wills whose terms disregard the rule in Shelley’s Case or the rule against perpetuities. In such cases the will must fail of effect, not because the intent of the testator does not control in its construction, but because the law will not permit his intent to be accomplished. It is to be remembered in this connection that the question in construing a will is not whether the testator intended to make a valid disposition of his property, but what provision he actually intended to make; when that intention is found, it is for the court to determine whether or not the intended provisions are valid or illegal. ’ ”

Repeatedly counsel for respondents concede in their brief,

But respondents produced certain other evidence designed to overthrow the presumption and which caused the trial judge to find •. “Decedent intended that if she died before making the later will which she was contemplating, she would die intestate as to said real property and intangible personal property, under the belief that such property would be distributed by the Court to the persons who she thought would be

There is no evidence, direct or inferential, to the effect that testatrix was laboring under any such misapprehension of the law. There is a presumption to the contrary (Estate of Lindsay, 176 Cal. 238 , 240 [ 168 P. 113 ]; Estate of Talmage, 114 Cal.App.2d 18 , 21 [ 249 P.2d 345 ]; Estate of Steidl, 89 Cal.App.2d 488 , 490 [ 201 P.2d 58 ]; Estate of Dunn, 120 Cal.App.2d 294 , 295 [ 260 P.2d 964 ]; 57 Am.Jur. § 1162, p. 759), one which takes on added weight “where the will evinces an intention on the part of the testator to dispose of his entire estate, or where intestacy will result in persons sharing in the estate whom the testator expressly cut off in the will” (emphasis added), 95 C.J.S., § 615, pp. 834-838. In Strauss v. Strauss, 363 Ill. 442 [ 2 N.E.2d 699 , 703, 105 A.L.R. 1386 ], it is said: “Where an intention to disinherit an heir is expressed clearly and manifestly in a will, so as to leave no reason for doubt, a construction of the will which would leave the testator intestate as to any portion of the property will not be adopted to defeat that intention and thus allow the heir to have some share in the estate.”

The trial court’s construction of the phrase “my belongings” not only results in frustration of the testatrix’ dominant purpose of excluding the grandchildren from enjoyment of her estate, but it is also opposed to the ordinary meaning of that term,—forces a meaning that will result in partial intestacjL Estate of Olson, supra, 144 Cal.App.2d 694 , 697: “Ballantine’s Law Dictionary [Supp. 1954] in discussing the word ‘belongings’ says: ‘Although the word (belongings) as used in a will, has, on occasion, been restricted to such chattels as are particularly attached to the person, it has more frequently been construed broadly, under the language of the particular wills involved, to include personal property of every nature and even real estate. ’ ”

Estate of Kruger, 55 Cal.App.2d 619 , 622 [ 131 P.2d 619 ]: “ It is also axiomatic that we must stand by the words of the will, and we cannot attribute to the testator any intention

In re Churchfield’s Will (Sur. Ct.), 165 N.Y.S. 1073 , 1074: “The common usage of the word ‘belongings,’ at least by a lay mind, includes all property, whether real or personal, and there is nothing in this will to show a contrary intent.”

Examination of the evidence shows that it lacks substantiality to such an extent that the quoted findings and conclusions fail of support. It consists of several instances in which testatrix, being interested in certain items of personalty, referred to them as her belongings, viz., her son Arthur’s “belongings” which were on his ship at the time of his death, referring to the contents of his locker; some tools that were in Arthur’s ear and referred to by testatrix as ‘ ‘ belongings.” Her stockbroker testified that he was Mrs. Ruttier’s stockbroker for 12 years immediately prior to her death;

The Eramdjian case, supra, at page 602, says: “A legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established. (Code Civ. Proc., §§ 1958, 1960.) It is axiomatic that ‘an inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork.’ (18 Cal.Jur.2d 480.) Yet that is exactly what appellants are attempting to do.”

Reese v. Smith, 9 Cal.2d 324 , 328 [ 70 P.2d 933 ] : “ ‘If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. (Patterson v. San Francisco etc. Ry. Co., 147 Cal. 178 [81 P.531].) A judgment cannot be based on guesses or conjectures. (Puckhaber v. Southern Pac. Co., 132 Cal. 363 [ 64 P. 480 ].) And, also, “A finding of fact must be an inference drawn from evidence rather than on a mere

Sweeney v. Metropolitan Life Insurance Co., 30 Cal.App.2d Supp. 767 , 772 [ 92 P.2d 1043 ]: “An inference is a deduction which the reason of the jury makes from the facts proved. (Code Civ. Proc., § 1958.) It is not a mere conjecture or an arbitrary dixit without reason and without factual support.”

What constitutes substantial evidence, as distinguished from mere possibility or speculation, is clarified in the following passage from Estate of Teed, supra, 112 Cal.App.2d 638 , 644: “The sum total of the above definitions is that, if the word ‘substantial’ means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case. ’ ’

Fewel & Dawes, Inc. v. Pratt, 17 Cal.2d 85 , 89 [ 109 P.2d 650 ]: “If, however, the evidence is so slight and tenuous that it does not create a real and substantial conflict the finding may be set aside. (Ibid.) ‘There must be more than a conflict of words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reasonably supports the judgment. . . .’ ”

Another class of evidence designed to establish the same conclusion is thus characterized by the court’s finding V: “Upon her death decedent left a great quantity of tangible personal property, some of which was of little, if any, intrinsic value, although value was attached to it by decedent, in and about her apartment and garages appurtenant thereto. ’ ’ The concluding portion of said finding, “ [h]er purpose in inserting the last paragraph in said Will was to protect that property from being carried away by anyone other than the donees of the power of appointment, ’ ’ is sheer speculation.

It thus appears that the hiatus in the proof created by a rejection of the testimony of Beatson, McQuarrie and Hay ter has not been filled with substantial evidence and the presumption against intended partial intestacy still stands. The principles invoked in Teich v. General Mills, Inc., 170 Cal.App.2d 791 , 800 [ 339 P.2d 627 ], become applicable: “This uncontradicted evidence could not be rejected. Estate of

We have concluded that the controlling finding in this case—“ [b]y the use of the phrase ‘my belongings’ in her Will, decedent intended to and did refer to her tangible personal property only, and did not intend to and did not refer to her intangible personal property, including cash on deposit, and her real property”—is not supported by substantial evidence ; that the presumption against deliberate intestacy stands unimpaired by countervailing proof and that the judgment must be reversed.

The “Decree Determining Interests in Estate and Order Denying Petitions for Preliminary Distribution” is reversed with instructions to the lower court to make and enter a decree determining that the power of appointment conferred upon appellants Bertha McQuarrie and Earl Hayter, also known as O. E. Hayter, by the will of Ethel May Kuttler, deceased, embraces decedent’s entire estate, both real and personal property, and that said appellants, having duly exercised this power in favor of themselves, are entitled to have said deee