Estate of Shubin

California Court of Appeal Jul 14, 1967 No. Civ. 31291Published

Before: Fox

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Holding. The court held that a specific devise of real property was not adeemed by an involuntary condemnation sale where the testator demonstrated no intent to adeem and promptly reinvested the proceeds into a new property.

Issues

Whether a specific devise of real property is adeemed when the property is sold via involuntary condemnation proceedings prior to the testator's death.
Whether the testator's intent to adeem a specific devise is a necessary element under California law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“But California has outgrown this ancient doctrine in favor of effectuation of the actual intent of the testator so far as it can be discerned.”

“That there was no intention on the part of the testator to adeem the devise by the involuntary sale of the real property to the State of California under a condemnation proceeding or by any other act of the testator.”

FOX, J.

This Petition to Determine Heirship was filed by Julia II. Marsh and Jack Shubin, as devisees named in the

[589]

will of their father, Jim A. Shubin, deceased. Harry Shubin, named executor in the will, is a son of decedent.

The decedent died on June 27, 1965, leaving a will dated March 7, 1957, and naming his son Harry as executor. The will, in paragraph Fourth, disposed of certain real property, known as 1018 and 1020 South Camulos Street, Los Angeles, in the following language:

“. . . That Harry Shubin has the option of keeping the said real property as his own, in which event he shall pay one-quarter each to the following, Mary E. Stupin, Julia H. Marsh, Jack Shubin (my son), and Harry Shubin, of the appraised valuation, or said real property is to be sold and divided equally between the following children, namely: Mary E. Stupin, Harry Shubin, Julia H. Marsh and Jack Shubin, (my son). That in the event Harry Shubin does not desire to buy said real property, then each of the children, in order named, Mary E. Stupin, Julia H. Marsh and Jack Shubin, (my son), shall have the oportunity to purchase the said real property under the same conditions that Harry Shubin has.”

The will in paragraph Seventh thereof further provided:

“All the remainder of my property, both real and personal wherever situated, I hereby give, devise and bequeath to Harry Shubin.”

On or about May 3, 1961, the State of California purchased the said real property pursuant to a condemnation proceeding for $14,767.15. The decedent took this money and added approximately $2,000 to it, and purchased the real property known as 2762 Ardmore Avenue, South Gate, California on or about May 12,1961.

Decedent wrote in his own handwriting on the top of the first page of said will these words: “Jim Shubin 2762 Ardmore Avenue, South Gate, California.” On the margin of page 1, next to paragraph Fourth (quoted supra) he also wrote: “2762 Ardmore Ave. South Gate. ”

Estate of Shubin

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FOX, J.

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