Allen v. Ferretti

PEEK, J.

This is an appeal by George Allen and Mildred Allen Swift, legatees under the will of Caroline Allen, deceased, from a decree determining interest in said estate made pursuant to a petition under Probate Code, section 1080.

Appellants are the natural children of decedent and her deceased husband, George Edward Allen, who died intestate March 18, 1934. Respondent is the decedent’s son by prior marriage. At the time of his death, the bulk of George Edward’s estate consisted of 666⅔ shares of Allen Estate Company. By the terms of the decree of distribution made therein, 186⅔ shares of said stock were distributed to each of the appellants, and to the decedent herein. In addition thereto testatrix received 106⅔ shares of said stock which were determined by the court to be the community property of herself and her deceased husband. On August 6, 1934, during the pendency of the probate proceeding in the estate of George Edward, the decedent herein made her will wherein she stated that: “. . . during all of the years since then [1898] he [Clarence Perretti, respondent herein] has been mutually accepted as a son by G. E. Allen, who frequently during his lifetime stated that Clarence Perretti was to share equally with his own children, George Allen and Mildred Swift, in the division of his estate.” The testatrix then went on to say that she was advised that because George Edward died without leaving a will, then under the law of succession of this state the respondent would not be entitled to share in his estate, and the whole thereof would be distributed entirely to herself and her two other children, appellants herein. She further stated that,

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under the circumstances ... it is unjust and inequitable that my son Clarence Perretti shall receive nothing from the estate of my husband and [I] therefore make this will in order to correct this unjust situation.” She then made alternative provisions that if the property

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were determined to be the separate property of her husband, and if distribution were made to herself and appellants herein in equal one-third shares, then ”... I give, devise and bequeath the entire one-third share which I shall receive . . . to my son Clarence Ferretti, and for the reasons stated above I give nothing to my two other children, George Allen or Mildred Swift.” But if the court determined that a portion of George Edward’s estate was his separate property and the remainder thereof their community property, then in that event “. . . I give, devise and bequeath to my son Clarence Ferretti, out of the share of the property which shall come to me, regardless of whether the same comes to me as my interest in the community or as my interest in the separate property of my husband, the same number of shares of the capital stock of Allen Estate Company as shall be distributed by the Court in these probate proceedings of my husband’s estate to my other two children, George Allen and Mildred Swift. In the event that the determination of the Court described in this paragraph shall result, I give, devise and bequeath all of the rest, residue and remainder of my estate in equal shares and proportions to my three children, Clarence Ferretti, George Allen and Mildred Swift.” After so disposing of her entire estate testatrix stated as a final expression of her wishes that, “It is my intention that as a result of this will, my son Clarence Ferretti shall receive exactly the same share and interest in the assets of the estates of my husband and myself as shall be received by my other children George Allen and Mildred Swift.”