Opinion
As Modified on Denial of Rehearing Jan. 5, 1967.
For Opinion on Hearing, see 59 Cal.Rptr. 437, 428 P.2d 301.
K. S. Burns, Los Angeles, for petitioners and appellants, and for cross-respondent Harold James Duerden.
Richard A. Perkins, Beverly Hills, for objectors and respondents, and for cross-appellant Genevieve C. Cooney.
WOOD, Presiding Justice.
The Will of the decedent Eva Barclay Taylor leaves one-third of the residue of her estate to Ellen Catherine Glasky with a proviso that if Ellen predeceases the distribution of the estate then said portion of the residue shall go in equal shares to Harold James Duerden and William Henry Duerden, Jr. During the administration of Eva's estate, Harold, as executor of the will, filed a petition for final distribution requesting that one-third of the residue be distributed to Ellen. Thereafter, and prior to the hearing of the petition, Ellen died. Harold then filed another petition for final distribution requesting that said one-third of the residue be distributed to Harold and William. Genevieve C. Cooney, who is the administratrix of Ellen's estate, and Rosemary Lick filed objections to the petition. The court made an order distributing said one-third of the residue to Ellen's estate, and allowed extraordinary fees to the executor (Harold) and his attorneys. Harold and William appeal from the portion of the order which distributes one-third of the residue to Ellen's estate. Genevieve appeals from the portion of the order which allows extraordinary fees to the executor and his attorneys.
Appellants Harold and William contend that the court erred in distributing one-third of the residue to Ellen's estate. Appellant Genevieve contends that the court erred in allowing extraordinary fees to the executor and his attorneys.
Eva and Ellen, who had been friends approximately twenty-five years, resided together approximately six years prior to Eva's death on September 14, 1963. At the time of Eva's death, Ellen was 'ill and penniless,' and received some financial assistance from Rosemary Lick, a friend.
In November 1963 Harold, who is a stepgrandson of Eva, petitioned for probate of Eva's will. Letters testamentary were issued to Harold on December 2, 1963, and notice to creditors was published on December 4, 1963. Harold was aware of Ellen's illness and poverty. In February 1964 Harold visited Ellen at the hospital and 'had her sign' an agreement whereby Harold agreed to pay Ellen's rent in consideration for Ellen's agreement to assign her interest in Eva's estate to Harold and to make a will leaving all of Ellen's estate to Harold. The agreement was rescinded several months thereafter.
With reference to the administration of the estate the court found as follows: The time within which creditors' claims could be filed expired on June 4, 1964. The inheritance tax report was filed, and the tax was fixed, in September 1964. The estate could have been closed in October or November 1964, but the executor decided to sell various assets although he did not need the proceeds for claims or taxes. As a result of the delay There was evidence as follows: On October 5, 1964, Ellen's attorney sent a letter to the executor's attorney stating that in view of Ellen's health, the administration of the estate should be expedited, and there was no reason that the estate could not be concluded. In December 1964 Rosemary Lick sent a letter to Harold protesting the delay in the administration of the estate and stating that Ellen was losing weight and strength. In January 1965 Ellen's attorney sent another letter to Harold's attorney stating in part as follows: 'My client is in urgent need of the funds, and * * * it is imperative that the probate proceedings be terminated at an early date. I have heretofore cited as a valid reason for demanding a speedy closing of the estate the poor health of Miss [Ellen] Glasky.'
After Ellen died, Harold filed another petition for final distribution requesting that the one-third of the residue which was left to Ellen on the condition that Ellen survive distribution be distributed to Harold and his brother, William. Objections to the petition were filed.
The court sustained the objections and made findings, among others, as follows: 'Throughout the fifteen month life of the estate of Eva Barclay Taylor, the executor knew that Ellen Catherine Glasky was ill and penniless. In fact, the executor entered into an agreement with Ellen Catherine Glasky to assist her with her rent. This agreement was later cancelled by agreement between Ellen Catherine Glasky and the executor. Despite, however, the executor's knowledge of the poverty and illness of Ellen Catherine Glasky, he did not accelerate his efforts to close this estate. Distribution of the estate of Eva Barclay Taylor could have been made in September of 1964. The share of Ellen Catherine Glasky should have been distributed to her before her death in March of 1965. The one-third residuary share of Ellen Catherine Glasky in the estate of Eva Barclay Taylor vested in Ellen Catherine Glasky before her death.'
Appellants Harold and William contend that the court erred in distributing one-third of the residue to Ellen's estate. They assert that under the will they are entitled to receive said portion of the residue in the event that Ellen 'predeceases the distribution' of Eva's estate; and that Ellen died before an order of distribution was made.
Appellants cite several cases to the effect that where a will provides that a beneficiary's interest is conditioned upon the beneficiary surviving distribution, the beneficiary's interest fails if he dies before an order of distribution is made. (Estate of Jameson, 93 Cal.App.2d 35, 208 P.2d 54; Estate of Hampe, 85 Cal.App.2d 557, 193 P.2d 133; Estate of Clarke, 103 Cal.App. 243, 284 P. 231.)
However, in Estate of Hogemann, 63 Cal.2d 131, 136, 45 Cal.Rptr. 149, 403 P.2d 405, wherein the time for filing of claims had expired, taxes and debts of the estate had been paid, and, except for a determination of the rights of the legatees nuder a federal statute, the estate was 'in a condition to be closed,' the court held (p. 134, 45 Cal.Rptr. p. 151, 403 P.2d p. 407) that although actual distribution had not been made, the estate was 'distributable' as far as California probate law was concerned. The court said (p. 136, 45 Cal.Rptr. p. 152, 403 P.2d p. 408, citing Simpson v. United States (1920), 252 U.S. 547, 40 S.Ct. 367, 64 L.Ed. 709): 'In Simpson the Supreme Court held that event though a decree of distribution had not been entered before the cutoff date, the interests under the will had become 'absolutely vested in possession and enjoyment' within the meaning of the federal statute when under state law (1) the time for presentation of creditors' claims had expired and (2) the legatees could institute proceedings for distribution of the estate.' It has also been said that a condition precedent in a will 'is to be deemed performed when the testator's intention has been substantially, though not 'It is the established policy of this state, implemented by sections 1000 and 1001 of the Probate Code, to encourage the distribution of property to legatees as soon as can be done * * *.' (Estate of Toler, 49 Cal.2d 460, 467, 319 P.2d 337, 341; see Estate of Hogemann, supra, 63 Cal.2d p. 136, 45 Cal.Rptr. 149, 403 P.2d 405; Estate of Buchman, 132 Cal.App.2d 81, 100-101, 281 P.2d 608, 53 A.L.R.2d 451.) 'Vesting [of a beneficiary's interest] cannot be postponed by the wrongful failure of the executor or trustee to comply with terms of the will and it has been held that contingent interests vest at the time division or distribution should have been made even though such division has been wrongfully delayed by the act of the trustee.' (Bowe and Parker, Page on Wills, § 43.11, p. 367, and cases cited.)
In the present case, the evidence and findings are to the effect that distribution under the will could and should have been made in October 1964; the executor without apparent cause delayed filing of the petition for distribution until March 1965, although he was aware of, and had been requested to close the estate by reason of, the beneficiary's illness; the executor was an alternate beneficiary if the beneficiary were to die before distribution; and the petition for final distribution, which in effect states that the estate was in a condition to be distributed, was filed before the beneficiary died. In those circumstances, the court did not err in ordering distribution to the beneficiary although she died before the order of distribution had been made.
Appellant Genevieve (as administratrix of Ellen's estate) has appealed from the portion of the order which allows extraordinary fees to the executor and to his attorneys, and contends that the court erred in allowing such fees.
There is substantial evidence that the executor and his attorneys performed extraordinary services prior to October 1964, and the court found that the reasonable value of such services was $1,000 for the executor and $1,000 for the attorneys. (The appraised value of the estate was $56,141.16, consisting primarily of securities which were sold by the executor.) 'To constitute reversible error, an allowance for extraordinary services must be on its face so far out of proportion to the value thereof as to constitute an abuse of judicial discretion.' (Estate of Windiate, 197 Cal.App.2d 560, 566, 17 Cal.Rptr. 297, 300; see Estate of Toler, 174 Cal.App.2d 764, 774, 345 P.2d 152; Estate of Anderson, 166 Cal.App.2d 39, 44, 332 P.2d 785.) The court did not abuse its discretion in making the allowance for extraordinary services of the executor and his attorneys.
The order (of December 8, 1965) is affirmed.
FOURT and LILLIE. JJ., concur.