Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INP020310 James A. Cox, Judge.
Garrison & McInnis, Hamilton & McInnis, Donald E. McInnis, Amelia A. McDermott and Roy C. Dickson for Objectors and Appellants.
Law Offices of Ila M. Tanchuk and Ila M. Tanchuk for Petitioner and Respondent.
OPINION
RAMIREZ, P.J.
Eola Maddox died leaving four surviving children and as many parcels of real estate. Her will provided that in the event any heir sold his or her interest in any of the properties, the remaining heirs would have a “first right of refusal” [sic] to purchase the selling heir’s share. One heir who survived Eola died before the estate was probated, leaving his girlfriend and heir, Clarene Y. Williams (Williams), respondent in this appeal, to inherit his interest in the Maddox estate.
Williams desired to sell her interest in the real property and offered the opportunity to buy her out to the remaining heirs. When she received no response, Williams petitioned for authority to sell real property inventoried in the estate. (Prob. Code, §§ 11951, 11953, subd. (b).) The trial court granted the petition, and Joe Maddox and Odell Maddox, two of the devisees under the will, appeal from that judgment.
Esther Ewing, an heir and the executrix of the estate of Eola Maddox, also appealed, but her appeal was dismissed for failure to timely deposit costs for preparing the record and for failure to timely designate the record on appeal.
On appeal, the Maddoxes argue that the “right of first refusal” referred to in their mother’s will was not triggered by Williams’s offer to sell them her interest in the properties. Instead, they argue she was required to obtain, from a third party, a bona fide offer to present to the remaining beneficiaries, who would then have the ability to exercise their right of first refusal to match the third party purchaser, and that if they refused in writing, Williams would have the ability to divest herself of her interest in the property. We affirm.
BACKGROUND
Eola Maddox (the testatrix) died on November 18, 1995. She left a will naming her daughter Esther Ewing as executrix, and bequeathed her property to her children, Lloyd Eason, Woodrow Maddox, Esther Ewing, Joe L. Maddox, Odell Maddox, and grandson, Chester Eason Maddox. However, the testatrix was predeceased by two of her children, Lloyd Eason and Woodrow Maddox, as well as a grandson, Chester Eason Maddox. Neither Lloyd Eason nor Woodrow Maddox had children; Chester Eason Maddox, who died on July 14, 1998, was testatrix’s grandson. By a will, Lloyd Eason left his estate to Williams, who was the executor of his estate.
Under the terms of the testatrix’s will, her five children were to receive an equal share of three parcels of real property: (a) a lot with six apartments and a portion of the property for commercial storage, subject to a life estate for her grandson to occupy one of the apartments; (b) a commercial property in Indio that had been used as a restaurant prior to the testatrix’s death; and (c) a.62-acre parcel adjoining the commercial property. There was also a reference in the will to acreage in the State of Arkansas. The will further provided that “Should any heir sell his or her interest in any of the properties, the remaining heirs shall have first right of refusal to purchase the selling heir’s share and should the heirs refuse to purchase, said refusal shall be given in writing and signed by all refusing heirs.”
Because Esther Ewing (the executrix) delayed filing a petition for probate of her mother’s will, Williams, the sole heir of Lloyd Eason and executor of his estate, filed a petition to admit the will to probate on October 31, 2005, to complete the transfer of Lloyd’s interest to her. On December 14, 2005, Esther Ewing filed a subsequent petition for probate of the will.
On October 1, 2007, Williams filed a petition for sale of real property inventoried in the estate. (Prob. Code, §§ 11951, 11953, subd. (b).) The petition alleged the executor proposed to distribute the real property in kind to the estate of Lloyd Eason, Esther Ewing, Joe L. Maddox and Odell Maddox as tenants in common, but that the division of undivided fractional interests between the devisees was impractical. Thus, the petition sought an order to sell the property pursuant to Probate Code section 11953, subdivision (b), or an order that the other devisees buy out the interest of Lloyd Eason to enable Williams to receive the distributive share belonging in the estate of Lloyd Eason.
The executrix objected to the petition for sale of the real estate, arguing that the testatrix intended to have the properties remain in the family subject to the right of first refusal as set forth in the will, and that Williams was required to take “whatever interest she takes subject to the express terms of the will.” The hearing on the petition was continued, and the court directed Williams to make an offer to sell to the other devisees.
On January 30, 2008, Williams sent letters to each of the devisees offering to sell the 25 percent interest that belonged to the estate of Lloyd Eason. None of the devisees responded.
In the meantime, on February 25, 2008, the executrix filed a petition to determine entitlement to distribution and to determine whether the motion to compel the sale of estate assets filed by Williams violated the no contest clause in the decedent’s will. In her declaration in support of the petition, the executrix asserted that her mother (the testatrix) had told her the “right of first refusal” clause included in the will was intended to mean that each of her adult children had the right to purchase the interest of the other in the event one person wanted to sell. However, she asserted that the right of first refusal had never been exercised because Williams did not present a bona fide offer of a third party purchaser.
On April 3, 2008, two of the devisees, Joe L. Maddox and Odell Maddox (beneficiaries), filed objections to Williams’s petition for the sale of estate property. Their interpretation of the “right of first refusal” was that the right to partition the property was waived and that in order to force a buyout, Williams was required to present to the other beneficiaries a bona fide offer to purchase from a third party. In her trial brief, filed prior to the hearing on the petition, the executrix echoed that same interpretation.
On April 4, 2008, the parties agreed to mediation, but mediation was unsuccessful. On September 15, 2008, the court granted Williams’s petition and ordered the sale of the estate property. The order was filed on October 8, 2008. On December 5, 2008, Joe L. Maddox and Odell Maddox filed a notice of appeal from the order. On December 8, 2008, the executrix appealed, but her appeal was dismissed on February 17, 2009.
DISCUSSION
On appeal, beneficiaries Joe L. Maddox and Odell Maddox (collectively “the beneficiaries”) challenge the trial court’s order granting Williams’s petition and ordering the sale of the estate property. They contend that Williams was not entitled to a partition and sale of the properties, that the purchase price can be established only by a bona fide offer from a third party, and if the property is ordered sold, their right of first refusal must be preserved. We hold that the beneficiaries’ right of first refusal was honored when Williams first wrote to them offering them an opportunity to buy out her share. When they refused, she was entitled to seek a partition.
“If two or more beneficiaries are entitled to the distribution of undivided interests in property and have not agreed among themselves to a partition, allotment, or other division of the property, any of them, or the personal representative at the request of any of them, may petition the court to make a partition, allotment, or other division of the property that will be equitable and will avoid the distribution of undivided interests.” (Prob. Code, § 11950, subd. (a).)
Probate Code section 11953, subdivision (b), provides in part, “The court may direct the personal representative to sell property where, under the circumstances, sale would be more equitable than partition and where the property cannot conveniently be allotted to any one party.” It has long been recognized that probate courts are vested with the authority to make partition of real property — where the title of the deceased owner and the heirship of the parties are undisputed — so as to invest each heir with a separate title to the particular part or parts allotted to him by the decree of partition. (Robinson v. Fair (1888) 128 U.S. 53, 77 [9 S.Ct. 30, 32 L.Ed. 415].)
An order of partition or directing or confirming the sale of estate property, like an order confirming the sale of such property, may be made “for the best interests of the estate.” (Estate of Da Roza (1947) 82 Cal.App.2d 550, 553.) The determination of the sufficiency of the petition lies within the discretion of the probate court. (Estate of Weaver (1958) 158 Cal.App.2d 367, 372, citing Estate of Kay (1947) 30 Cal.2d 215, 218.) We review the trial court’s order directing the sale of the estate property for an abuse of discretion. (See Estate of Barthelmess (1988) 198 Cal.App.3d 728, 738-741; Estate of Da Roza, at p. 555.)
Because the order for the sale of the estate property rested on an interpretation of the will, we are also called upon to construe the will’s terms. In the absence of competent extrinsic evidence, it is solely a judicial function to interpret a written instrument. (Strong v. Theis (1986) 187 Cal.App.3d 913, 918; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) Thus, this court is not bound by the trial court’s interpretation of this agreement but rather has a duty to independently examine it. The cardinal rule is that the intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. (Prob. Code, § 21102, subd. (a).) “The real question... is, What did the testator mean in view of the language he has used in his will, in the light afforded by certain rules of interpretation which must prevail where a contrary intent does not clearly appear on the face of the will?” (Estate of Axcelrod (1944) 23 Cal.2d 761, 766.)
Although wills are to be construed in accordance with the testator’s intent, it is the intent expressed by the words of the will itself which must be given effect rather than some undisclosed purpose or intent that may have existed in the mind of the testator. (Estate of Newman (1964) 230 Cal.App.2d 158, 163.) It is to be presumed that a testator did not intend that which he might have said but did not say in the will. (Ibid.) In determining the testator’s intent, of course, the court must look first to the language itself and how it is used in conjunction with the rest of the document. (Estate of Del Val (1958) 159 Cal.App.2d 600, 605.)
First, we note that all the parties objecting to Williams’s petition agreed on one key point: it was the intent of the testatrix that the property remain in the family. We also note that the language used in the will showed the testatrix was aware that there might be situations in which the sale of the property in the estate might be necessary. Specifically, her bequest of the life estate to her grandson made provision for such an eventuality [“Should the property be sold or any portion of any interest be transferred, ...”].
The Maddox beneficiaries argue that she intended that the real properties remain in the family and that the right of partition is waived. Under their interpretation, Williams was required to present to the other beneficiaries a bona fide offer to purchase from a third party, and the right of first refusal arises only when an heir sells his or her interest in any of the properties. This language does not appear in the will, and the beneficiaries’ construction of the will’s language as resulting in a waiver of the right to partition is not reasonable.
The beneficiaries rely on a rigid interpretation of the “right of first refusal” as included in the will of their mother in arguing that Williams did not satisfy the requirements by not presenting a bona fide offer to purchase by a third party. They rely on interpretations of contractual provisions for such a right as between parties transacting business at arms length. For instance, the beneficiaries cite Harrison v. Domergue (1969) 274 Cal.App.2d 19, 21, in support of their position that the right of partition is waived when an agreement contains an express statement to that effect, as evidenced by a right of first refusal. Of note is the fact that the right of first refusal in that case was an express term in an agreement under which the original cotenants agreed to waive the right of partition, but the court held that agreement was not binding on the successors in interest who were not parties to the original agreement. The court in that case observed that absent such an express agreement by a cotenant, the right of partition was absolute. (Ibid.)
A similar contractual provision was at issue in Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, also relied upon by the beneficiaries. In that case, the court interpreted the agreement between cotenants to require that one cotenant first offer to sell his interest to the other before bringing an action for partition. (Id. at p. 253.) This holding does not support the beneficiaries’ position insofar as the reviewing court’s interpretation in that case is consistent with the interpretation of the will language by the trial court in the present case.
Other authorities relied upon by the beneficiaries all relate to rights of first refusal between parties to a contract. In Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515, 1522-1523, the property owned by cotenants was leased and the family members who co-owned the property made an intra-family transfer, and the tenant objected, claiming right of first refusal. The court held that as between co-owners, the terms of the right of first refusal, contained in a commercial lease agreement, were not triggered. The reviewing court thus affirmed the trial court’s denial of the tenant’s claim for specific performance of the right of first refusal.
Similarly, in Pellandini v. Valadao (2003) 113 Cal.App.4th 1315, a grandfather left 582 acres in trust to his grandchildren, consisting of four parcels. Three parcels and a portion of the fourth parcel were left to his grandson, James Pellandini, and the balance was left to two cousins who were sisters. The parties and their parents were then involved in a series of court actions, culminating in a settlement agreement by which the parties agreed to the creation (by partition) of a new parcel to be transferred to the two cousins, subject to Pellandini’s right of first refusal to meet any bona fide offer for purchase of the property.
When one of the cousins conveyed her interest to her husband as community property, Pellandini sought specific performance of the right of first refusal. The reviewing court concluded that the right of first refusal was intended to be triggered by a sale of the cousins’ combined interest to a third party. (Pellandini v. Valadao, supra, 113 Cal.App.4th at p. 1322.) The court concluded that a bona fide sale for purposes of a right of first refusal does not occur unless there is a transfer for value to a third party. (Ibid.)
None of the authorities cited by the beneficiaries supports their position that Williams was required to procure an offer to purchase by a nonfamily member and present it to the other heirs in order to trigger the right of first refusal. If that had been the testatrix’s intent, she could easily have said as much. To interpret the will provision to require Williams to obtain an offer from a third party bona fide purchaser would defeat the testatrix’s presumed intent, since it would require Williams to negotiate (possibly in bad faith) with nonfamily members for the sale of her fractional interest, just to trigger the beneficiaries’ right of first refusal. This intent was not expressed in the will, and we will not read into the will such a requirement.
Instead, a much more reasonable interpretation of the will’s language is that the testatrix wished to prevent beneficiaries from selling their fractional shares to nonfamily members by affording her heirs the opportunity to purchase the share of any heir desiring to sell his or her interest in the property. This would promote her intent to keep the property within the family.
The trial court order granting the petition to order the sale of the estate property was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: King J., Miller, J.