Darling v. Redwine CA5

Filed 8/30/16 Darling v. Redwine CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
BRADFORD DARLING,
F071429
Plaintiff and Appellant,
(Super. Ct. No. S-1500-CV-279420)
v.
DEBRA L. REDWINE, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Law Office of Timothy L. Kleier, Timothy L. Kleier; Pape & Shewan and Scott R.
Shewan for Plaintiff and Appellant.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett,
Joseph D. Hughes and Kurt D. VanSciver for Defendant and Respondent.
-ooOoo-
Plaintiff appeals from the judgment in his declaratory relief action, which sought a
determination of the ownership of six investment accounts held by decedent in trust for
plaintiff prior to decedent’s death. Plaintiff contends the disposition of the accounts was
governed by the Uniform TOD Securities Registration Act, which the trial court failed to
apply. Defendant, the executor of the decedent’s will and the successor trustee of her
family trust, contends decedent, prior to her death, revoked the trusts in which the
investment accounts were held; as a result, they became part of the family trust. The trial
court found in favor of defendant as to three of the accounts. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Decedent, Flora Darling (Flora),1 married Lansing Darling (Lansing), the father of
plaintiff, Bradford Darling (Darling), in 1959, when Darling was a boy. Flora and
Lansing had no other children. Flora treated Darling as her son. When Lansing died in
1987, he left his entire estate to Flora.
In 1998, Flora created the Flora L. Darling Living Family Trust (family trust); at
the same time, she executed a pour over will, leaving her estate to the family trust. The
family trust instrument provided that, on Flora’s death, the remainder of the trust estate
was to be distributed 25 percent to Darling, 25 percent to defendant, Debra Redwine,
Flora’s grandniece, and 25 percent each to Flora’s two nephews, Bill McDonald and
Thomas McBroom. Redwine was named executor of Flora’s will and successor trustee
of the family trust.
Flora died on February 13, 2012. Prior to her death, Flora was the owner of six
investment accounts with five mutual fund companies. Title to each account indicated
she held the account in her name, as trustee for the benefit of Darling. For each account,
she had executed a Declaration of Trust—Revocable, dated 1989 or 1990. After Flora’s
death, Redwine went through her papers; among the papers in Flora’s office, she
discovered the declarations of trust for three of the stock accounts2 folded together with a
handwritten note on the outside, reading: “Revoked by Flora L Darling Living Family
1 We refer to Flora and Lansing by their first names for convenience, because they share a
last name with Darling. No disrespect is intended.
2 The three declarations of trust in issue in this appeal were for Growth Fund of America
(referred to as the American Funds account), Franklin California Tax Free Income Fund (referred
to as the Franklin Templeton account), and California Tax Exempt Bond Fund (referred to as the
Virtus account). The three declarations of trust not in issue were for Dreyfus GNMA Fund,
Dreyfus Strategic Income Fund, and California Tax Exempt Money Market Fund (referred to as
the Putnam account).
2.
Trust 1998,” followed by a “scribble” Redwine identified as Flora’s initials. Redwine
found a second set of the same declarations of trust, also folded together with a
handwritten note on the outside, reading: “Revoked CK Flora L Darling Living Family
Trust 1998,” also with a scribble Redwine identified as Flora’s initials.
Darling attempted to have the six stock accounts transferred into his name, based
on the title to the accounts, but succeeded in having only two of them transferred to him.
Redwine attempted to have the accounts transferred to her as successor trustee of Flora’s
family trust. She obtained the funds from one account. Darling filed this declaratory
relief action against Redwine, as successor trustee of Flora’s family trust, seeking a
determination of ownership of the six disputed stock accounts. His first amended
complaint alleged the six accounts were set up as Totten trusts and declarations of trust,
so that each account was a separate trust and not part of Flora’s family trust. He further
alleged that each account absolutely and irrevocably vested in him as the sole beneficiary
upon Flora’s death. The first amended complaint alleged there was an actual controversy
between the parties regarding ownership of the stock accounts, which required a judicial
determination of the rights and obligations of the parties.
The trial court concluded that Flora revoked the stock trusts holding the three
accounts whose trust instruments were folded together with “revoked” written on the
outside; it entered a judgment determining title to those accounts was transferred to
Redwine as trustee of the family trust on Flora’s death. It concluded there was
insufficient evidence to find Flora revoked the remaining three stock trusts; the judgment
determined title to those accounts transferred to Darling on Flora’s death. Darling
appeals.
DISCUSSION
I. Motion to Strike Addendum to Appellant’s Brief
At trial, prior to Darling’s testimony, the parties discussed whether his testimony
could be shortened by using the statement of facts included in his written statement in
3.
lieu of oral opening statement as his direct testimony, then subjecting him to oral cross-
examination. The trial court pointed out the portions of the written statement it thought
would be appropriate for that purpose. The parties then stipulated that specified portions
of the written statement would be admitted as Darling’s direct testimony, but without
stipulating to the accuracy or veracity of the testimony.
Darling attached to his opening brief “Addendum A” and “Document 91.”
Addendum A, a declaration of his counsel, explained that document No. 91 is a copy of
the written statement, redacted to include only the portions the parties stipulated would be
used as Darling’s direct testimony. Redwine moved to strike addendum A and document
No. 91, contending document No. 91 was improper as an attachment to the brief because
she refused to agree to include it in the joint appendix, so the redacted document was not
a part of the record (although the complete document was), and the addendum and
document exceeded the 10-page limit for attachments to briefs. (Cal. Rules of Court,
rules 8.120(a), 8.204(d).)3
Rule 8.204(d) permits a party filing a brief to attach “copies of exhibits or other
material in the appellate record” to its brief. It provides that “attachments must not
exceed a combined total of 10 pages, but on application the presiding justice may permit
additional pages of attachments for good cause.” (Rule 8.204(d).) The unredacted
document is part of the record. The redacted document was attached to Darling’s brief
for the convenience of the court, to segregate the portions admitted as his testimony from
the portions that were not. The addendum and document No. 91 together consist of
10 pages containing at least some writing, a cover page for document No. 91, and a few
additional blank pages where the writing was redacted in its entirety.
We find document No. 91 to be a useful and convenient means of reviewing the
direct testimony of Darling. To the extent the page limitation may have been technically
3 All further references to rules are to the California Rules of Court.
4.
exceeded, we disregard the noncompliance with rule 8.204(d). (Rule 8.204(e)(2)(C).)
The motion to strike is denied.
II. Uniform TOD (Transfer on Death) Security Registration Act
Darling contends the manner in which the three stock accounts in issue were held
made them securities registered in beneficiary form, subject to the “Uniform TOD
Securities Registration Act” (Prob. Code, §§ 5500–5512; the Act).4 Under the Act, he
contends, on Flora’s death, the accounts passed to him as the beneficiary, without probate
or estate administration. (§§ 5500, subd. (c), 5507.) We conclude the Act does not apply
to these accounts.
Under the Act, on the death of the owner of securities registered in beneficiary
form, ownership passes to the beneficiary. (§ 5507.) “A security, whether evidenced by
certificate or account, is registered in beneficiary form when the registration includes a
designation of a beneficiary to take the ownership at the death of the owner or the deaths
of all multiple owners.” (§ 5504.) “‘Beneficiary form’ means a registration of a security
that indicates the present owner of the security and the intention of the owner regarding
the person who will become the owner of the security upon the death of the owner.”
(§ 5501, subd. (a).) “Registration in beneficiary form may be shown by the words
‘transfer on death’ or the abbreviation ‘TOD,’ or by the words ‘pay on death’ or the
abbreviation ‘POD,’ after the name of the registered owner and before the name of a
beneficiary.” (§ 5505.) For example, when there is a sole owner and sole beneficiary,
the title might read: “John S. Brown TOD (or POD) John S. Brown, Jr.” (§ 5510,
subd. (c)(1).) The purposes of the Act “are to (1) encourage development of a title form
for use by individuals that is effective, without probate and estate administration, for
transferring property at death in accordance with directions of a deceased owner of a
4 All further statutory references are to the Probate Code unless otherwise indicated.
5.
security as included in the title form in which the security is held and (2) protect issuers
offering and implementing the new title form.” (§ 5500, subd. (c).)
The American Funds account bore the title: “FLORA L. DARLING TTEE, FBO
BRADFORD J. DARLING, UDT 01/10/89,” meaning Flora L. Darling, trustee, for the
benefit of Bradford J. Darling, under declaration of trust 01/10/89. The Franklin
Templeton and Virtus accounts bore similar titles.5 None of the account titles included a
“TOD” or “POD” designation. Darling contends the “FBO” designation had the same
effect as a “TOD” or “POD” designation. We disagree.
Initially in this action, Darling claimed the stock accounts were Totten trusts by
reason of the manner in which they were held. A Totten trust account is defined as: “an
account in the name of one or more parties as trustee for one or more beneficiaries where
the relationship is established by the form of the account and the deposit agreement with
the financial institution and there is no subject of the trust other than the sums on deposit
in the account.… A Totten trust account does not include … a regular trust account
under a testamentary trust or a trust agreement which has significance apart from the
account.” (§ 80.) Apparently conceding the accounts in this case are not deposit
accounts with a financial institution,6 Darling now essentially contends securities
registered in beneficiary form under the Act include a securities account that is the
equivalent of a Totten trust with a financial institution. We conclude the Act does not
express an intent that a stock account held by the owner for the benefit of another is the
equivalent of a TOD or POD account under the Act.
5 The Franklin Templeton account title was: “FLORA L. DARLING TRSTE, FBO
BRADFORD J. DARLING, UDT DTD 1-10-89.” The title of the Virtus fund account was:
“FLORA L. DARLING TTEE, FBO BRADFORD J. DARLING, DTD 01/10/89.”
6 See definition of “financial institution” in sections 40, 5128, and definition of “account”
in section 5122, subdivisions (a), (b).
6.
The “Multiple-Party Accounts Law” (§§ 5100–5407), which governs deposit
accounts with financial institutions, contains express provisions for handling Totten trust
accounts. For example, the beneficiary of a Totten trust account has no rights to sums on
deposit during the life of the trustee, but on the death of the sole trustee, any amount
remaining on deposit belongs to the person named as beneficiary, unless there is clear
and convincing evidence of a different intent. (§§ 5301, subd. (e), 5302, subd. (c).) The
Totten trust account may be paid to the beneficiary on proof of death of the trustee.
(§ 5404.) If the account is held in the name of one person as trustee for another, the
financial institution may treat it as a Totten trust, if it has no notice in writing that the
account is not a Totten trust. (§ 5406.) Thus, “if it is unknown to the financial institution
that the funds on deposit are subject to a trust created other than by the deposit of the
funds in the account in trust form,” the financial institution is protected from liability for
paying in accordance with the governing statutes. (Cal. Law Revision Com. com.,
Deering’s Ann. Prob. Code (2004 ed.) foll. § 5406, p. 645.)
There are no similar provisions in the Act addressing stock accounts held by the
owner as trustee for the benefit of a named beneficiary. The Act, in describing and
giving examples of registration in beneficiary form, cites only the designations “‘TOD,’”
“‘POD,’” “‘transfer on death,’” and “‘pay on death.’” (§§ 5505, 5510, subd. (c).) It does
not mention “FBO,” “for the benefit of,” or “in trust for the benefit of.”
Further, the Probate Code contains a separate division governing trusts.
(§§ 15000–19403.) It applies to all trusts (§ 15001), including trusts created by a
“declaration by the owner of property that the owner holds the property as trustee.”
(§ 15200, subd. (a).) The definition of “trust” includes “[a]n express trust, private or
charitable, with additions thereto, wherever and however created.” (§ 82, subd. (a).) It
expressly excludes “Totten trust accounts.” (§ 82, subd. (b)(4).) There is no exclusion
for Totten trust-like securities accounts, held by the owner as trustee for the benefit of a
beneficiary.
7.
Additionally, the definition of a Totten trust account expressly excludes “a regular
trust account under a testamentary trust or a trust agreement which has significance apart
from the account.” (§ 80.) Accordingly, a Totten trust account is one which relies for its
existence on the manner in which title to the account is held and any terms and conditions
imposed by the financial institution where the account is maintained. It does not exist as
a result of a separate declaration of trust containing terms and conditions of the trust.
Even if we were to recognize a securities account in a form like a Totten trust as a
securities account registered in beneficiary form under the Act, the designation would not
apply to an account held in a trust created by a declaration of trust, rather than an account
held in trust only because of the designation in the account title. For each account in
issue, Flora executed a written declaration of trust, setting out the terms of the trust. The
title to each account does not simply indicate Flora holds the account in trust for Darling,
it indicates the account is held in trust pursuant to a declaration of trust. Accordingly, the
accounts are not the securities account equivalent of a Totten trust account with a
financial institution.
If the Legislature had wished to recognize a Totten trust-like securities account as
a securities account registered in beneficiary form under the Act, it could have included
in the Act provisions similar to those governing Totten trust accounts in the Multiple-
Party Accounts Law. It did not do so; rather, it focused on registrations that include the
designations “TOD,” “POD,” “transfer on death,” and “pay on death.” Because it did not
create or recognize a Totten trust-like designation for securities accounts, we conclude it
did not intend the term “securities registered in beneficiary form,” as used in the Act, to
include a stock account titled in the owner as trustee for the benefit of a named
beneficiary, whether pursuant to a declaration of trust or not.
III. Revocation Method
The trial court concluded the handwritten and initialed notes on the three folded
together trust declarations “carrie[d] the day” and met Redwine’s burden of proving
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revocation of the stock trusts. It found “Flora Darling intended to revoke, and did revoke,
the express trusts that held the Virtus, Franklin Templeton, and American Funds
accounts.” Darling contends the trust declarations provided an exclusive method of
revocation, which Flora failed to follow. Accordingly, he argues the trial court’s finding
that Flora revoked the three stock account trusts was incorrect as a matter of law.
“The interpretation of a written instrument, including a … declaration of trust,
presents a question of law unless interpretation turns on the competence or credibility of
extrinsic evidence or a conflict therein. Accordingly, a reviewing court is not bound by
the lower court’s interpretation but must independently construe the instrument at issue.”
(Poag v. Winston (1987) 195 Cal.App.3d 1161, 1173.) “In construing a trust instrument,
the intent of the trustor prevails and it must be ascertained from the whole of the trust
instrument, not just separate parts of it. [Citation.] Ordinary words must be given their
normal, popular meaning and legal terms are presumed to be used in their legal sense.”
(Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168; §§ 21121, 21122.) The
parties offered no extrinsic evidence to assist in interpreting the meaning of the
revocation provision of the trust declarations, so we are not bound by the trial court’s
interpretation and must interpret the trust declarations de novo.
Regarding revocation of trusts, the Probate Code provides:
“A trust that is revocable by the settlor or any other person may be
revoked in whole or in part by any of the following methods:
“(1) By compliance with any method of revocation provided in the
trust instrument.
“(2) By a writing, other than a will, signed by the settlor or any other
person holding the power of revocation and delivered to the trustee during
the lifetime of the settlor or the person holding the power of revocation. If
the trust instrument explicitly makes the method of revocation provided in
the trust instrument the exclusive method of revocation, the trust may not
be revoked pursuant to this paragraph.” (§ 15401, subd. (a).)
9.
The declaration of trust for each of the three stock accounts provided: “I reserve
the right at any time to change the beneficiary or revoke this trust, but it is understood
that no change of beneficiary and no revocation of this trust, except by death of the
beneficiary, shall be effective as to the Company for any purpose unless and until written
notice thereof in such form as the Company shall prescribe is delivered to the Custodian
Company.” Darling contends this constitutes an explicitly exclusive method of
revocation, as a result of which Flora could only revoke her trusts by delivering written
notice to the investment companies where the accounts were held in the form the
companies required. Because it is undisputed she never delivered written notice of
revocation to the investment companies, Darling contends the trusts were not revoked.
The trial court, in its tentative decision,7 determined the revocation provisions
were not exclusive, but that no revocation was effective as to the company unless a
writing was delivered to the company. It noted the trust instruments were “silent as to
what other forms of revocation might be effective among disputing beneficiaries.”
In the trust declarations, Flora expressly reserved the right to revoke the trusts.
The only limitation on revocation of the trusts was that “no revocation … shall be
effective as to the Company for any purpose” until written notice was given to the
company. Darling focuses on the language “no revocation … shall be effective … for
any purpose” without written notice to the company, and asserts this provision represents
the exclusive means of revoking the trusts. The key language, however, is the language
the trial court noted: “no revocation … shall be effective as to the Company” without
written notice to the company. (Italics added.) Darling makes no attempt to explain the
significance of the phrase “as to the Company” in this provision.
7 We note “[t]he tentative decision does not constitute a judgment and is not binding on the
court.” (Rule 3.1590(b).) The language cited by Darling was not included in the final statement
of decision, and thus does not reflect the trial court’s final findings or reasoning.
10.
“The words of an instrument are to receive an interpretation that will give every
expression some effect, rather than one that will render any of the expressions
inoperative.” (§ 21120.) Construing the revocation provision in accordance with the
plain meaning of the words used, and giving effect to all of the words used, we conclude
the revocation provision did not explicitly make any method of revocation the exclusive
method of revocation. (§ 15401, subd. (a)(2).) The language regarding giving notice to
the company pertained only to the effect of a revocation on the companies. The effect of
the provision was to preclude liability of the companies for honoring the trust provisions
in the absence of notice of the revocation of the trust. The reservation of the right to
revoke the trust did not specify any means by which revocation was to be accomplished,
much less limit the trustor to one exclusive method.
The cases cited by the parties are of limited assistance. In Gardenhire v. Superior
Court (2005) 127 Cal.App.4th 882 (Gardenhire), the question was whether the decedent
had validly revoked a trust during her lifetime by executing a will in which she expressly
revoked all prior wills, stated her intent to dispose of all of her property by the new will,
and included provisions distributing her property differently from the disposition
provided for in the trust instrument. (Id. at pp. 885–886.) The trust instrument
authorized revocation “‘by written notice signed by the Trustor and delivered to the
Trustee.’” (Id. at p. 886.) The court concluded the unqualified term “‘written notice’”
included a will, delivered by the trustor to herself as trustee. (Id. at p. 888.) It noted:
“section 15401, subdivision (a)(1) allows a trust to provide any method of revocation. If
the trust is silent and does not provide a method, then section 15401, subdivision (a)(2)
allows revocation by a writing, other than a will, signed and delivered by the trustor to
the trustee during the trustor’s lifetime. If the trust is not silent and instead provides a
method of revocation, then section 15401, subdivision (a)(2) is inapplicable.”
(Gardenhire, at p. 894, fn. & italics omitted.)
11.
In Masry v. Masry (2008) 166 Cal.App.4th 738 (Masry), a family trust in which a
husband and wife were trustors and trustees provided: “‘Each of the Trustors hereby
reserves the right and power to revoke this Trust, in whole or in part, from time to time
during their joint lifetimes, by written direction delivered to the other Trustor and to the
Trustee.’” (Id. at p. 740.) The husband executed a notice of revocation, but did not
deliver notice of revocation to the wife. (Id. at pp. 740–741.) The court observed “‘a
modification method is explicitly exclusive when the trust instrument directly and
unambiguously states that the procedure is the exclusive one.’” (Id. at p. 742.) It
concluded the revocation provision of the trust was not explicitly exclusive, but provided
just one method of revocation in addition to the method provided in section 15401,
subdivision (a)(2). (Masry, at p. 742.) The court rejected Gardenhire’s dictum that “‘If
the trust is not silent and instead provides a method of revocation, then [Probate Code]
section 15401, subdivision (a)(2) is inapplicable.’” (Masry, at p. 742.) Instead, “absent
language in the trust that its method of revocation is exclusive, the trustor has the option
of revoking according to the method provided in Probate Code section 15401,
subdivision (a)(2), delivering notice to himself as trustee.” (Id. at pp. 742–732.) The
husband’s revocation complied with section 15401, subdivision (a)(2), so the revocation
was held valid. (Masry, at p. 740.)
In King v. Lynch (2012) 204 Cal.App.4th 1186 (King), this court addressed
modification, rather than revocation, of a trust. We interpreted section 15402, which
provides: “‘Unless the trust instrument provides otherwise, if a trust is revocable by the
settlor, the settlor may modify the trust by the procedure for revocation.’” (King, at
p. 1192.) Prior to enactment of that section, there was no statute governing modification;
courts applied the rules governing trust revocation to trust modification. (Id. at p. 1193.)
The enactment of separate sections governing revocation and modification indicated the
Legislature no longer intended the same rules to apply to both revocation and
modification. We construed the phrase “‘[u]nless the trust instrument provides
12.
otherwise’” in section 15402 to mean that, if the trust instrument contained any method
of modification, then the statutory procedure for revocation did not apply as a method of
modification. (King, at p. 1193.)
Gardenhire concluded the trustor’s method of revocation complied with the
method set out in the trust instrument. That rule does not apply here, because no method
of revocation was set out in the trust instrument. The declaration of trust reserved the
trustor’s right to revoke, but did not specify a method. It simply provided that any
revocation would be ineffective as to the company unless notice of revocation was given
to the company.
Masry properly rejected the dicta in Gardenhire suggesting that, if a trust
instrument provides any method of revocation, the method set out in section 15401,
subdivision (a)(2) does not apply. That result would only follow if the method provided
in the trust instrument were explicitly made the exclusive method of revocation.
(§ 15401, subd. (a)(2).) Again, there was no language in Flora’s declarations of trust
setting out any exclusive method of revoking the trusts.
King is not relevant because it construed section 15402 regarding modification of
trusts, not section 15401 regarding revocation of trusts.
We find no error in the trial court’s implicit determination that the trust
declarations did not contain an explicitly exclusive method of revocation, which Flora
failed to follow.
IV. Sufficiency of the Evidence of Revocation
A. Standard of review
Darling argues that Redwine bore the burden of proof of revocation of the stock
trusts, and the trial court concluded the two handwritten notes of revocation “‘carried the
day’” in proving revocation of three of the stock trusts. Darling contends the trial court
relied solely on the notes and not on any extrinsic evidence, so the appeal raises a pure
issue of law, subject to de novo review.
13.
Darling does not discuss the issue as one of law, focusing only on the notes
themselves and their legal significance. Instead, he discusses letters and emails proffered
by Redwine to show Flora’s intent and testimony he offered to show Flora intended the
stock trusts to be kept separate from the family trust. He accuses the trial court of
ignoring or forgetting the testimony of his witnesses. He challenges Redwine’s
credibility regarding the discovery of the trust declarations, and whether they were folded
together with the handwritten notes on the outside as she testified. Darling repeatedly
asserts the second note was not initialed or signed, ignoring Redwine’s trial testimony
that both notes bore Flora’s initials. He questions whether initialing the notes, rather than
signing them, was consistent with Flora’s “normal conduct.”
Darling has not raised an issue of law subject to de novo review. He challenges
the sufficiency of the evidence to support the judgment. Accordingly, we apply the
substantial evidence standard of review.
B. Sufficiency of the evidence
“An appellant challenging the sufficiency of the evidence to support the judgment
must cite the evidence in the record supporting the judgment and explain why such
evidence is insufficient as a matter of law.” (Rayii v. Gatica (2013) 218 Cal.App.4th
1402, 1408.) “When a trial court’s factual determination is attacked on the ground that
there is no substantial evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial court. If such substantial
evidence be found, it is of no consequence that the trial court believing other evidence, or
drawing other reasonable inferences, might have reached a contrary conclusion.”
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics omitted.)
“‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is
14.
reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 651.) “The ultimate test is whether it is reasonable for a trier of fact to
make the ruling in question in light of the whole record.” (Id. at p. 652.)
Initially, we reject Darling’s assertion that “The Trial Court clearly states that it
relied solely on these cryptic handwritten Notes and no extrinsic evidence.” The trial
court stated:
“Finally, there is an express revocation that is written in the decedent’s
hand and bearing her initials written across documents (exhibits 23 and 24)
referring to the Virtus, Franklin Templeton, and American Funds accounts
which specifically refers to the 1998 Trust. There is no such document
with respect to the Dreyfus or Putnam accounts. It is this evidence that
carries the day with respect to the burden of proof as to the Virtus, Franklin
Templeton and American Funds accounts. The Court finds that Flora
Darling intended to revoke, and did revoke, the express trusts that held the
Virtus, Franklin Templeton, and American Funds accounts.”
While the trial court found that the handwritten notes on the folded together trust
documents effected a revocation of those stock trusts, it did not indicate it considered
only those notes, and no extrinsic evidence, in arriving at that conclusion. There was trial
testimony regarding how, when, where and by whom the stock trust documents with the
handwritten notes were found. The trial court’s statements do not indicate it disregarded
that evidence in reaching its decision.
Darling asserts one handwritten note was written on the back of a copy of a letter,
folded around the three declarations of trust, but nothing was written on any of the
declarations of trust themselves. The other handwritten note was written on the back of a
copy of the American Funds declaration of trust, which was folded together with copies
of the Virtus and Franklin Templeton declarations of trust, but nothing was written on the
latter two trust documents. The word “revoked” was not written on the face of any of the
declarations of trust. Darling argues the trial court extrapolated from the manner in
which the documents were found that the revocation applied to all three documents in
15.
each packet, and suggests that this extrapolation is “quite a stretch.” He speculates that,
if Flora had intended to revoke the trusts, she would have written a note on the face of
each document.
Darling notes there was no direct evidence regarding how the trust declarations
became folded together; he suggests Redwine had the motive and opportunity to fold
them together herself, especially since the three trusts in issue contained the bulk of the
monies in the stock accounts. He asserts the three declarations of trust were trifolded, but
were never placed in an envelope and mailed to the mutual fund companies or Flora’s
investment advisor, supporting “the conclusion that the Notes (if authentic) were nothing
more than thoughts Flora Darling may have had at one time about revoking the trust
documents.”
“An appellate court presumes in favor of the judgment or order all reasonable
inferences. [Citation.] If there is substantial evidence to support a finding, an appellate
court must uphold that finding even if it would have made a different finding had it
presided over the trial. [Citations.] An appellate court does not reweigh the evidence or
evaluate the credibility of witnesses, but rather defers to the trier of fact.” (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 958.)
At trial, Redwine testified that, after Flora’s death, she went to Flora’s house and
obtained the papers kept in a bedroom that contained two desks, bookcases, a filing
cabinet, and boxes and stacks of papers. She packed up most of the papers and took them
home to go through. In June or July 2012, she found among the papers three declarations
of trust, for the Franklin Templeton trust, the Virtus trust, and the American Funds trust,
folded together with writing on the outside. She found a second set of the same trust
declarations, again with writing on the outside. There was no dispute the handwriting
was Flora’s. Redwine testified both handwritten notes included Flora’s initials. There
was no contradictory evidence.
16.
One handwritten note stated: “Revoked by Flora L. Darling Living Family Trust
1998,” followed by Flora’s initials. The other read: “Revoked CK Flora L. Darling
Living Family Trust 1998,” with the initials alongside the word “Living.”
Redwine offered in evidence letters and e-mails Flora wrote to her in 1998 and
2011 about Flora’s will and trust. In a letter of April 29, 1998,8 written shortly after
Flora executed her will and created her family trust, Flora stated “All of my assets have
been place[d] in the trust, excepting what is in the house and my personal cars.” She
added, “I have divided everything equally among you four. I hate bickering and hard
feelings, so I decided that equal division would be the best way to go.” Another letter,
dated May 27, 1998, stated: “The stocks will go into the trust fund but it will be up to
you to invest the monies to the best advantage. So, simply have the stocks turned over to
you as executor and take the dividends and distribute the monies to each individual as
named in the trust.” In a list of her assets prepared in 2011 at Redwine’s request, Flora
listed: “various stocks—in desk file.” Redwine testified Flora did not discuss with her
any special provisions for Darling, other than he was to have a particular painting and the
guns.
Redwine testified that, shortly before her death, Flora told Redwine the value of
the assets in the family trust was $2 million. Her assets had that value only if the value of
the stock trusts was included.
Darling presented the testimony of McDonald, who stated Flora told him twice
that everything she owned was going into the trust; everything would be sold and split
four ways, except some money that was left to Darling by his father. Darling also
presented the testimony of Craig Henderson, who was Flora’s stockbroker from 1995 to
2004; Henderson testified he reviewed the stock accounts with Flora in 2000 and she said
8 The beginning of the letter is dated May 29, 1998, but a postscript states the correct date
was April 29, 1998.
17.
the accounts were intended for her son, Darling. She never expressed an interest in
changing the designations on the accounts.
The credibility of the testimony of Redwine, McDonald, and Henderson, as well
as the inferences to be drawn from their testimony and other evidence, including the
condition in which Redwine found the three declarations of trust (folded together with
Flora’s handwritten notes on the outside), were matters for the determination of the trial
court. We cannot reweigh the evidence or substitute our own factual determinations for
those of the trial court. Our only determination is whether the trial court’s determinations
were supported by substantial evidence. We conclude substantial evidence supports the
judgment of the trial court.
DISPOSITION
The judgment is affirmed. Defendant Redwine is entitled to her costs on appeal.
_____________________
HILL, P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
KANE, J.
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