Estate of Lackey

California Court of Appeal Apr 28, 1971 No. 37483Published

Before: Cobey

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Holding. A lifetime gift does not adeem a general legacy under Probate Code section 1050 unless the testator expresses such an intention in writing or the donee acknowledges the gift as an ademption in writing. The court held that neither the correspondence from the legatees nor the testator's statements regarding the gifts satisfied these statutory requirements.

Issues

Whether a legatee's letter acknowledging receipt of funds constituted a written acknowledgement of ademption under Probate Code section 1050.
Whether a testator's written statement that he was paying legacies 'before [the will] was probated' expressed an intent to adeem legacies in his own will.
Whether oral evidence is admissible to prove a testator's intent to adeem a legacy via an inter vivos gift.

Disposition. Reversed in part; affirmed in part.

Quotations verified verbatim against the opinion

“Probate Code section 1050 provides in pertinent part that a gift before death shall be considered as an ademption of a general legacy, but that this result shall not obtain unless the testator expresses such an intention in writing”

“Under these circumstances we hold that Mrs. Barcal's letter to George did not constitute the written acknowledgement required by Probate Code section 1050.”

“Oral evidence of a testator's intention in making lifetime gifts is not admissible under Probate Code section 1050.”

17 Cal.App.3d 247 (1971) 94 Cal. Rptr. 524 Estate of GEORGE LACKEY, Deceased.

ETHEL MONTGOMERY, as Executrix, etc., et al., Petitioners and Appellants,

MAURINE BARCAL, Objector and Appellant.

PATRICIA CARSON, Objector and Respondent.

BERTHA CLIFTON, Claimant and Appellant.

Docket No. 37483. Court of Appeals of California, Second District, Division Three.

April 28, 1971. [249] COUNSEL

Miller & McKechnie, Robert Clifton and James A. McKechnie for Petitioners and Appellants and for Claimant and Appellant.

Gilbert, Thompson, Kelly, Crowley & Jennett, William D. Jennett and Jean Wunderlich for Objector and Appellant and for Objector and Respondent.

[250] OPINION

COBEY, Acting P.J.

These are cross-appeals challenging the incongruous result that two inter vivos gifts by a testator, George Lackey, to two of his predeceased wife's cousins in the amounts of their legacies had different legal consequences. As regards Mrs. Maurine Barcal the trial court found that her legacy of $20,000 in George Lackey's will was adeemed by the lifetime gift to her of this amount. As regards Mrs. Patricia Carson, the court found that the lifetime gift to her of $10,000, the amount of her legacy in George Lackey's will, did not have this effect. This result occurred because the court concluded that as regards Mrs. Barcal the requirements of Probate Code section 1050 for an ademption had been met, but that with respect to Mrs. Carson they had not.

BACKGROUND

On August 14, 1956, George and Lavina Lackey, husband and wife, made reciprocal wills under which the estate of each was left to the other. In the event the spouses died about the same time or in the event the spouse, who would have received the estate of the other, predeceased the other, each will provided for general legacies in various amounts to certain specified relatives of the spouses and residual devises and bequests to other specified relatives. Among the general legacies were five to Lavina's cousins. These were $20,000 to Mrs. Barcal, $10,000 apiece to her daughter Mrs. Carson and Walter Condon and $5,000 apiece to Frances Bartlett and Ethel Young.

Estate of Lackey

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BACKGROUND

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MRS. BARCAL'S LEGACY

MRS. CARSON'S LEGACY

NOTES

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