Stewart v. Van Noy

TRATNOR, C. J.

This appeal is from a judgment determining interests in the estate of Walter II. Stewart, deceased. Appellants are the stepchildren of the decedent and the sole surviving beneficiaries under his will. Respondent is decedent ’s widow and the administratrix of his estate.

The'facts are not in dispute. Decedent, his then wife Jennie M. Stewart, and his brother John E. Stewart owned real property in Selma, California, as tenants in common. On June 19, 1936, they entered into a written contract to will their respective one-third interests in the property to the survivors for life and to their respective children on the death of the last survivor.

The contract provided that on ¹ ‘ this day each executed a will by which the survivors or survivor is given a life estate in the property held as tenants in common by the parties hereto; that each has read the will of the other and understands the same and approves such will, and each hereby agrees not to revoke or cancel his or her will, without the written consent of the other parties hereto. ’ ’

Pursuant to the contract decedent executed a will leaving his interest to his wife Jennie M. Stewart and his brother John E. Stewart for life, remainder to his daughter and to his six stepchildren, the children of Jennie Stewart, in equal shares.

Upon John Stewart’s death in 1947, decedent and his wife Jennie held the property as cotenants for life. Since none of the beneficiaries named in John Stewart’s will was living at the time of his death, decedent inherited John’s one-third interest in fee simple. When Jennie Stewart died in 1949, decedent acquired her interest in the property for life.

After Jennie’s death decedent married respondent Viola Stewart. Decedent died on May 1, 1965. He was survived by his widow Viola, his brother Sankey M. Stewart, and the six stepchildren of his marriage with Jennie Stewart. His estate consisted of the one-third interest he owned in the Selma property in 1936 and the one-third interest he inherited from his brother John.

Decedent died without making a new will. Viola was appointed administratrix of his estate, and his will of June 19, 1936, was admitted to probate. Viola then filed a petition for a decree determining interests in decedent’s estate, claiming a one-half share. Decedent’s brother Sankey and the stepchildren contested her claim. The trial court determined that Viola was entitled to half the estate as decedent’s post-testamentary spouse under Probate Code section 70 and that the stepchildren were entitled to the other half of the estate under the will.

The stepchildren contend that they are entitled to three-fourths of the estate, the half that was the subject of the contract, and half the remaining half as beneficiaries under decedent’s will, which section 70 does not revoke as to them.

Probate Code section 70 provides that “ If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received. ’ ’

Decedent made no provision for Viola in his will or by marriage contract, nor did he mention her in his will. Thus the will is revoked as to her, and whatever interest she would have taken had her husband died intestate goes to her as the surviving spouse “unaffected by the provisions of the will.” (Estate of Piatt (1947) 81 Cal.App.2d 348, 350 [183 P.2d 919].) Since the estate consists entirely of decedent’s separate property, his heirs are Viola and his brother Sankey (Prob. Code, §223).¹

Had decedent died intestate, he would have breached his contract with his wife Jennie and his brother John. Since a “mutual will . . . may be revoked by any of the testators in like manner as any other will” (Prob. Code, §23), decedent could also have revoked the will he made pursuant to the contract. Under either circumstance, however, a court of equity would enforce the contract for the stepchildren’s benefit by impressing a trust on the property in the hands of decedent’s heirs. (See Notten v. Mensing (1935) 3 Cal.2d 469, 473 [45 P.2d 198] ; Brown v. Superior Court (1949) 34 Cal.2d 559, 564 [212 P.2d 878] ; Rundell v. McDonald (1923) 62 Cal.App. 721, 725 [217 P. 1082] ; James v. Pawsey (1958) 162 Cal.App.2d 740, 747 [328 P.2d 1023]; Van Houten v. Whitaker (1959) 169 Cal.App.2d 510, 515 [337 P.2d 900]; Warwick v. Zimmerman (1928) 126 Kan. 619, 624 [270 P. 612] ; Underwood v. Myer (1929) 107 W.Va. 57, 59-60 [146 S.E. 896] ; cf. Estate of Rath (1937) 10 Cal.2d 399, 404 [75 P.2d 509, 135 A.L.R. 836].) Although the stepchildren were not the immediate beneficiaries of decedent’s promise, it was “made expressly for [their] benefit.” (Civ. Code, § 1559; see Brewer v. Simpson (1960) 53 Cal.2d 567, 588 [2 Cal.Rptr. 609, 349 P.2d 289].) The terms of the agreement were “sufficiently certain to make the precise act which is to be done clearly ascertainable” (Civ. Code, §3390, subd. 5; cf. Owens v. McNally (1896) 113 Cal. 444, 451 [45 P. 710, 33 L.R.A. 369]), and the stepchildren would have no adequate remedy at law by way of money damages for the breach (cf. Morrison v. Land (1915) 169 Cal. 580, 586 [147 P. 259]; Doolittle v. McConnell (1918) 178 Cal. 697 [174P. 305].)

The fact that decedent’s post-testamentary marriage resulted in a partial revocation of the will by operation of law does not impair the stepchildren’s right to enforcement cf the contract, for such a partial revocation can no more prejudice their rights than could a total revocation in repudiation of the contract. Decedent had the full use and enjoyment of the entire property after the death of his wife Jennie and his brother John. Having thus received the benefits of the contract, “he thereupon became estopped from making any other or different disposition of the property. ... It follows as well that he could not avoid this estoppel ... by a subsequent marriage. . . .” (Sonnicksen v Sonnicksen (1941) 45 Cal.App.2d 46, 55 [113 P.2d 495].) Thus, Viola’s rights attach only to property equitably as well as legally owned by decedent, but not to property that he had only legal title to and that in equity belongs to the stepchildren. (See Notten v. Mensing, supra, 3 Cal.2d 469, 473; Brewer v. Simpson, supra, 53 Cal.2d 567, 592; Lich v. Carlin (1960) 184 Cal.App.2d 128, 138 [7 Cal.Rptr. 555] ; Lewis v. Lewis (1919) 104 Kan. 269, 272-273 [178 P. 421]; Ralyea v. Venners (1935) 155 Misc. 539, 542 [280 N.Y.S. 8].) Accordingly, had decedent died intestate, Viola would have received half of half the estate that was not subject to the contract. (Prob. Code, §223.) That is all she is entitled to by virtue of section 70.

Viola contends, however, that by leaving his original interest in the property to the stepchildren decedent fully discharged his obligation to them and that they would receive under the trial court’s award all they were entitled to receive under the contract. She concludes that the trial court’s distribution of half the estate to the stepchildren and half to her satisfied not only their rights under the contract but also her right to an intestate share under Probate Code sections 70 and 223.

For Viola to receive the entire interest that was not subject to the contract, however, would result in a revocation of the will beyond that contemplated by section 70 and a substitution of her in place of Sankey as an intestate heir. Since that section revokes the will only “as to the spouse’’ and leaves the will otherwise intact (Prob. Code, §70 [the words “as to the spouse” were added in 1931] ; see also Estate of Bendell (1943) 59 Cal.App.2d 165, 167 [138 P.2d 378]), Viola is entitled to only half of half the estate that decedent willed to the stepchildren independently of his obligation under the contract. (Prob. Code, § 223.) The stepchildren are entitled to the other half of that half as devisees under the will. Had decedent died intestate that quarter of his estate would have gone, not to Viola, but to his brother Sankey under Probate Code section 223.

Although section 70 reflects an historic policy that looks with “disfavor toward a testator’s failure to provide for his surviving spouse” (Estate of Duke (1953) 41 Cal.2d 509, 512 [261 P.2d 235]), it gives the spouse no absolute right to share in the testator’s separate property; to preclude his spouse from inheriting any part of such property, the testator need only “mention” her in the will “in such way ... as to show an intention not to make” any provision for her. (Prob. Code, §70.) It would be anomalous to conclude that this statute requires that she receive more because the testator performed his contract than she would have received had he breached it.

The judgment is reversed.

Peters, J., Tobriner, J., Mosk, J., and Sullivan, J.', concurred.

1 “If the decedent leaves a surviving spouse and no issue, the estate goes one-half to the surviving spouse and one-half to the decedent’s parents in equal shares, ... or if both are dead to their issue. ...”