Estate of Jephcott

California Court of Appeal Jan 8, 1953 No. Civ. No. 19172Published

Before: Shinn

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Holding. The court held that children of a predeceased spouse who are not specifically enumerated in Probate Code section 41 lack standing to challenge charitable bequests, even if they would have inherited the property under the laws of succession in the absence of a will.

Issues

Whether children of a predeceased spouse have standing under Probate Code section 41 to challenge charitable bequests exceeding one-third of an estate.
Whether Probate Code sections 228 and 229 expand the class of persons authorized to challenge charitable gifts under section 41.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Only those heirs who are named in section 41 may question the validity of gifts to charities by will executed more than 30 days but less than six months (section 43) prior to the death of the testator.”

“Children of a predeceased spouse, unless they also belong to one of the classes specifically named, have no right to question the validity of charitable bequests.”

115 Cal.App.2d 277 (1953) Estate of REBECCA JEPHCOTT, Deceased. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, Petitioner; HADASSAH MEDICAL ORGANIZATION et al., Respondents,

DOUGLAS S. JEPHCOTT et al., Appellants.

Civ. No. 19172. California Court of Appeals. Second Dist., Div. Three.

Jan. 8, 1953. Ernest Eugene Walker for Appellants.

A. A. Rotberg for Respondents.

SHINN, P. J.

By findings made on a hearing for distribution of the estate of Rebecca Jephcott, deceased, and objections thereto, the following facts were established.

Rebecca Jephcott was the surviving wife of Montague F. Jephcott; all the property which was in her estate at the time of her death was acquired by her through gift, devise and bequest from the estate of her husband. Joseph, Leon, Israel and Henry Belous, are nephews of Rebecca, her next of kin and only heirs at law. Douglas S. Jephcott and Norman C. Jephcott are the children of Montague Frank Jephcott by a former wife, and are his next of kin and only heirs at law. Rebecca made a will by which she left more than one- third of her estate to charities and she died four months and ten days thereafter. When the estate was ready for distribution the nephews filed objections, claiming the right to receive the excess of said one-third of the estate. The stepsons, Douglas and Norman, also filed objections and sought distribution of the excess to themselves. All objections were overruled and distribution was made to the charities. Upon this appeal, Douglas and Norman are the appellants and the charities are the respondents. [279]

The foregoing facts bring in question the application of section 41 of the Probate Code. Under that section, the will having been executed at least 30 days before death, the legacies to the charities were valid and not subject to question as to one-third of the estate, but they could not exceed collectively more than one-third of the estate as against the decedent's spouse, brother, sister, nephew, niece, descendant or ancestor, who except for the will would have taken the excess over one- third. The section reads in part as set out below. [fn. 1] Although the objections of the nephews were overruled, they have not appealed and the order as to them has become final.

Estate of Jephcott

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SHINN, P. J.

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