66 Cal. 2d 855 | Cal. | 1967
Lead Opinion
Eva Barclay Taylor died testate September 14, 1963. Her will provided that one-third of the residue of her estate should go to Ellen Catherine Glasky if she survived distribution of the estate. If she predeceased distribution, her one-third share was to go in equal shares to
The evidence supports the findings of the trial court. There was evidence that the executor, Harold, knew that Ellen was ill and without funds; that she requested him to expedite proceedings concerning distribution of the estate; that inheritance taxes could have been approximately computed; that there was sufficient cash in the estate to pay any such taxes; and that it was therefore unnecessary to sell many of the securities that were sold. The sales that were made, whether necessary or not, could reasonably have been made at an earlier date, and Harold’s attorney testified that many of the securities in the estate could have been distributed without being sold, but that she “didn’t think of” this possibility. But for the belated decision to sell securities in the fall of 1964, the estate could easily have been distributed in that
Based on this finding, the court applied the rule that vesting cannot be postponed by unreasonable delay in preparing an estate for distribution and that when there is such delay contingent interests vest at the time distribution should have been made. (See 5 Page, Wills (Bowe-Parker Revision 1962) § 43.11, p. 367.) We have found no case that considers whether this rule is applicable in this state. The Duerdens contend that the rule is inconsistent with Probate Code section 142. That section provides: “A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. It is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. Nothing vests until such condition is fulfilled, except where fulfillment is impossible. ...” The crucial issue under this section is whether a clause requiring survivorship should be interpreted to mean survivorship to distribution or survivorship to the time distribution should have occurred, or, as an alternative, whether survivorship to the earlier date constitutes substantial compliance with the condition. Under either interpretation we believe that unreasonable delay cannot defeat the beneficiary’s interest. This conclusion promotes the established policy favoring prompt distribution of estates (see Estate of Hogemann, 63 Cal.2d 131, 136 [45 Cal.Rptr. 149, 403 P.2d 405]; Estate of Toler, 49 Cal.2d 460, 467, 469 [319 P.2d 337]) and carries out the presumed intent of the testatrix. In the absence of any indication to the contrary a testator contemplates prompt distribution. His intention is substantially complied with if a beneficiary who is alive at the time distribution could and should have occurred is allowed to take under the will.
The Duerdens contend that since Ellen could have petitioned for a preliminary distribution during her life, delay in settling the estate cannot vest title in her. Ellen was under no obligation to petition for preliminary distribution, and there is “no principle which would create a forfeiture because of failure to take such legal action.” (Forman v. Brent, supra, 309 Ky. at p. 739.)
The Duerdens assert that even if the executor, Harold, should not take because of the delay, William should take one-half of Ellen’s bequest. This contention is based on the erroneous assumption that the rule vesting Ellen’s interest is designed solely to prevent an executor from profiting by his own wrong. Ellen’s conditional bequest vested at a time before her death, not because of the executor’s wrong, but because that was the time when distribution should have occurred.
We find no merit in the contention that our holding will lead to undesirable uncertainty in the settlement of estates.
On her cross-appeal Miss Cooney contends that the trial court erred in awarding $1,000 to Harold as executor and $1,000 to his attorneys as extraordinary fees.
The order is affirmed. Each party shall bear its own costs on appeal.
Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
The will provides: “In the event the said Ellen Catherine Glasky predeceases me, or predeceases the distribution of my estate, the share of my estate which she would have taken by this Article of my Will but for her death, shall go and be given in equal shares to Harold James Duerden and William Henry Duerden, Jr. ...”
The same policy reasons that lead us to conclude that the gift to Ellen cannot be defeated by unreasonable delay in distribution compel the conclusion that Probate Code section 1023 does not make void the order distributing Ellen’s gift to the administratrix of her estate. The second paragraph of that section provides that: “In the event any heir, devisee or legatee so dying before distribution is named in any decree of distribution heretofore or hereafter entered, purporting to malee distribution to such distributee by name, such decree shall not be deemed void but shall have the same effect as though such distribution had been made to him while living. However, where the share is purportedly distributed to him pursuant to the terms of a will which provides that he shall be
In addition, each received statutory commissions of $1,848.47.
Dissenting Opinion
I dissent and would reverse the order insofar as it decreed that Ellen’s interest vested before her death and ordered distribution to the administratrix of her estate.
Where a will provides that the interest of a beneficiary is contingent upon his surviving distribution, survivorship is a condition precedent to vesting and the beneficiary’s interest fails if he dies prior to the making of an order of distribution. (Estate of Jameson, 93 Cal.App.2d 35, 38-40 [1] [208 P.2d 54] [hearing denied by the Supreme Court] ; Estate of Hampe, 85 Cal.App.2d 557, 558 [1] [193 P.2d 133] [hearing denied by the Supreme Court].)
Section 142 of the Probate Code provides: “A condition precedent in a will is one which is required to be fulfilled before particular disposition takes effect. It is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. Nothing vests until
In the instant case, fulfillment of the condition was not impossible. Therefore, under the plain language of the statute, vesting had not occurred.
The petition of the petitioners and appellants for a rehearing was denied July 12, 1967, and the opinion was modified to read as printed above.