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Estate of Rich

California Court of Appeals, Third District, Shasta
Apr 28, 2009
No. C058684 (Cal. Ct. App. Apr. 28, 2009)

Opinion


Estate of MYRTLE MARY RICH, Deceased. GILMAN DUCKWORTH, Petitioner and Respondent, v. LORRETTA THRUSH, Objector and Appellant. C058684 California Court of Appeal, Third District, Shasta April 28, 2009

NOT TO BE PUBLISHED

Super. Ct. No. P24463

NICHOLSON, Acting P. J.

In this probate case, one of the daughters of the decedent lost her right to receive a share of the estate because she contested the will. The trial court concluded that the share that would have gone to the contestant would go to the residuary heirs rather than to the other daughter. The noncontestant daughter appeals that order, asserting that she is entitled to the portion that would have gone to the contestant. She makes this assertion, however, having failed to obtain a statement of decision or a reporter’s transcript. We conclude that the meager record does not support her contention of error. We therefore affirm.

BACKGROUND

Myrtle Mary Rich passed away in 2000, leaving an estate worth about $325,000 in real property. She was survived by her two daughters (Janet Mendez and objector Lorretta Thrush) and five grandchildren (including petitioner Gilman Duckworth).

In 2005, two competing petitions were filed in the probate court. Mendez filed a petition for probate, claiming that Rich died intestate. Duckworth filed a petition for probate of a will.

The will that Duckworth submitted for probate was typed in 1976 and signed by Rich, but without witnesses. In 1986, and again in 1990, Rich made handwritten notes incorporating the 1976 will. She signed and dated the notes. The 1976 will provided in the fifth paragraph for the distribution of the estate, as follows, in pertinent part:

“I give, devise, and bequeath all my right, title and interest whatsoever it may be in all my real and personal property wherever situated, as follows:

“(1) Ten (10) Percent to the CALIFORNIA BAPTIST FOUNDATION, a California non-profit corporation, to be added to its COLLEGE STUDENT AID ENDOWMENT FUND.

“(2) Twenty five (25) Percent to my children, to be equally divided between them, and all the rest and residue to my surviving grandchildren, share and share alike.”

The sixth paragraph of the will directed that “in the event any person or persons contest the probate of this Will,... that said person or persons be given the sum of One Dollar ($1.00) by the representative of my said estate as his or her entire share thereof....”

Mendez objected to the probate of the will. The trial court set a trial on the competing petitions. After trial, the court found the will valid and granted Duckworth’s petition for probate. It denied Mendez’s petition.

Duckworth filed a petition for an order declaring that Mendez and Thrush violated the will’s no contest clause. Mendez and Thrush opposed the petition, and the court set the matter for trial.

On November 30, 2007, the court held a trial on the no contest clause issue. The clerk’s transcript reflects that four witnesses testified. However, there was no court reporter present. The trial was completed in less than one day, and none of the parties requested a statement of decision.

On December 3, 2007, the court issued its decision. It found that Mendez contested the will and was therefore not entitled to any part of the estate. However, Thrush did not contest the will and was entitled to 12 1/2 percent of the estate. The court directed counsel for Duckworth to prepare a judgment for the court to sign.

In response to the judgment proposed by counsel for Duckworth, counsel for Thrush submitted a letter to the court. Counsel stated that the issue of whether Thrush should receive 12 1/2 percent or 25 percent of the estate was neither briefed nor discussed. Counsel asked the court to “take another look at” the issue, and argued that the proper distribution to Thrush, under the will, was 25 percent of the estate. Counsel for Duckworth sent a letter to the court arguing that a 25 percent distribution of the estate would be contrary to the testator’s intent and unfair. The court issued a one-sentence minute order stating that it declined to modify the decision. The court signed an order reflecting its prior decision on the matter.

DISCUSSION

On appeal, Thrush contends that the court erred in its interpretation of the will when it ordered that she would receive 12 1/2 percent of the estate. She argues that the will bequeathed 25 percent of the estate to the “class” of Rich’s children and that, because Mendez is not eligible to receive any part of the estate (save one dollar), Thrush is entitled to the full 25 percent bequeathed to the children.

Duckworth responds that, contrary to Thrush’s argument, the will provided for what he refers to as “failed distributions” in the residuary clause because it bequeathed the “rest and residue” of the estate to the grandchildren. Duckworth also argues that Thrush should be prevented from receiving any more than 12 1/2 percent because she participated with Mendez in the contest of the will.

Perhaps more significant to our resolution of this appeal, the parties disagree concerning the standard of review we must apply. Thrush asserts that we must apply a de novo standard of review because the issue presented on appeal is, in her words, “one of pure interpretation, in that the case involves interpretation of the language of the 1976 Will, in light of the application of the ‘no contest clause’ to Janet Mendez.” Duckworth disagrees, noting that “the trial court had before it the testimony of four witnesses from which to assist it in drawing conclusions concerning the intent of Mrs. Rich.”

In a previous case, we summarized the applicable standards of review, as follows:

“‘A will must be construed according to the intention of the testator as expressed therein, and this intention must be given effect if possible. Each case depends on its own particular facts and precedents are of small value.’ (Estate of Stadler (1960) 177 Cal.App.2d 709, 711.) Stated another way, ‘“‘The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.’” [Citation.]’ (Estate of Verdisson (1992) 4 Cal.App.4th 1127, 1135.) [¶]... [¶]

“‘In reviewing a trial court’s construction of a will, we are free to independently interpret the instrument as a matter of law unless the trial court’s interpretation turned upon the credibility of extrinsic evidence or required resolution of a conflict in the evidence. [Citations.] “The possibility that conflicting inferences can be drawn from uncontroverted evidence does not relieve the appellate court of its duty independently to interpret the instrument; it is only when the issue turns upon the credibility of extrinsic evidence, or requires resolution of a conflict in that evidence, that the trial court[’s] determination is binding.” [Citation.]’ (Estate of Verdisson, supra, 4 Cal.App.4th at pp. 1135–1136.)” (Estate of Goyette (2004) 123 Cal.App.4th 67, 70-71, original emphasis.)

Therefore, the question of the standard of review hinges on whether there was extrinsic evidence concerning the testator’s intent. We, however, are at a disadvantage in this regard. Because there is no reporter’s transcript, we have no way of knowing whether there was any extrinsic evidence relevant to this issue. We are also at a disadvantage because no one requested a statement of decision. The only indication of the trial court’s reasoning is its bare conclusion that Thrush should receive 12 1/2 percent of the estate. As we will explain, these impediments to appellate review, which prevent a finding that the court erred, require us to affirm.

Thrush did not obtain a settled statement, as allowed by California Rules of Court, rule 8.137.

Clerk’s Transcript Appeal

“[A]n appellant ‘“must affirmatively show error by an adequate record.... ‘A judgment... is presumed correct. All... presumptions are indulged to support it on matters as to which the record is silent....’”’” (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532, original emphasis.) “On a clerk’s transcript appeal, [we] must conclusively presume that the evidence is ample to sustain the findings.” (Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24.) The absence of a reporter’s transcript is fatal to an appellant’s claim that a trial court’s order is not supported by the evidence. (Pfleg v. Pfleg (1959) 168 Cal.App.2d 53, 55.) “To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Because we do not have the benefit of a reporter’s transcript of the trial in which there may have been evidence concerning the testator’s intent, we must presume that there was such evidence and that it supported the trial court’s decision.

Ironically, Thrush states in her reply brief that, because there is no reporter’s transcript, Duckworth cannot claim that there was extrinsic evidence concerning the testator’s intent. She fails to recognize that it is the appellant’s duty to present a full record.

Lack of Statement of Decision

In addition to failing to obtain a reporter’s transcript, Thrush failed to obtain a statement of decision as provided for in Code of Civil Procedure section 632.

“Particularly pertinent here, and not addressed by either side, is the doctrine of implied findings. This doctrine requires that in the absence of a statement of decision, an appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792–793, superseded on other grounds by statute as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448–449; In re Marriage of Arceneaux [(1990) 51 Cal.3d 1130,] 1133–1134; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

“An applicable corollary to the doctrine of implied findings is the rule that a trial court’s tentative or memorandum decision is no substitute for a statement of decision. ‘In a nonjury trial the appellant preserves the record by requesting and obtaining from the trial court a statement of decision pursuant to California Code of Civil Procedure section 632 [and rule 3.1590 of the California Rules of Court]. The statement of decision provides the trial court’s reasoning on disputed issues and is our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law.’ (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.) ‘A memorandum opinion is not a decision. Although it may purport to decide issues in the case, it is merely an informal statement of the views of the trial judge. It does not constitute findings of fact.’ (Taormino v. Denny (1970) 1 Cal.3d 679, 684.)” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267-268, fn. omitted.)

Because Thrush did not obtain a statement of decision, we presume that the trial court made the necessary findings of fact.

Interpretation of the Will

The absence of both a reporter’s transcript and a statement of decision is a double whammy against Thrush’s contention of error. Because there was no reporter’s transcript, we must presume that there was evidence that supported the order. And because there was no statement of decision, we must presume that the trial court made all factual findings necessary to support the order. As a logical matter, the only argument that could overcome these presumptions is that under no set of facts could the will be interpreted to mean that Thrush is entitled to 12 1/2 percent of the estate rather than 25 percent. As we will explain, that argument does not prevail.

Under the likely unanticipated circumstance presented here (where one of the two children has forfeited her share of the inheritance by contesting the will), the will does not give guidance. The will states: “Twenty five (25) Percent to my children, to be equally divided between them, and all the rest and residue to my surviving grandchildren, share and share alike.” The no contest clause gives one dollar to anyone who contests the will but does not state what is to be done with the remainder of the portion of the estate that the contestant would have received had she not contested. Therefore, the will is unclear on this point.

The trial court’s interpretation of the will is reasonable. It appears that Rich intended each of her daughters to receive 12 1/2 percent of her estate, with the grandchildren sharing the residue. Although Rich did not say as much in the will, giving Thrush 12 1/2 percent of the estate and allowing the grandchildren to share the residue does not conflict with the express terms of the will.

Thrush argues that the will must be read to mean that the children were to have 25 percent of the will regardless of whether one of the children contested the will because it provided 25 percent to the “class” of children. That is a possible interpretation, but it is not the only reasonable interpretation.

Returning to the matter of extrinsic evidence, we must conclude that there may have been evidence introduced at trial concerning Rich’s intent. Furthermore, we must presume, given the absence of a reporter’s transcript, that such extrinsic evidence favored the trial court’s interpretation of the will. And finally, we must also presume, given the absence of a statement of decision, that the trial court impliedly found that the extrinsic evidence supported the court’s interpretation. Accordingly, without a reporter’s transcript and statement of decision, Thrush cannot show error in this case.

DISPOSITION

The order is affirmed. Duckworth is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur: HULL, J., BUTZ, J.


Summaries of

Estate of Rich

California Court of Appeals, Third District, Shasta
Apr 28, 2009
No. C058684 (Cal. Ct. App. Apr. 28, 2009)
Case details for

Estate of Rich

Case Details

Full title:Estate of MYRTLE MARY RICH, Deceased. v. LORRETTA THRUSH, Objector and…

Court:California Court of Appeals, Third District, Shasta

Date published: Apr 28, 2009

Citations

No. C058684 (Cal. Ct. App. Apr. 28, 2009)