Bank of America v. Brown

BROWN (Gerald), P. J.

The respondent, Bank of America, as executor of the estate of Evelyn J. Brown, petitioned the probate court for instructions and to determine heirship. It was decreed that a specific nonrelated devisee, Gladys Giolitto, take certain realty subject to an existing deed of trust, and that Giolitto was not entitled to exoneration of this encumbrance out of the residuum which was willed by decedent to relatives. The decree recite'd that the decedent did not intend exoneration, and that it is not required by law.

All realty owned by decedent was held in her name only. Decedent left her husband only $1.00. This surviving spouse, appellant Brown, petitioned for a probate homestead; the court awarded one to him. But the court found and decreed that all the realty held by decedent was her sole and separate property and that decedent’s surviving spouse had no community or other interest in it at the time of decedent’s death.

The realty was owned by decedent before her marriage to appellant; it was improved during the marriage. Decedent had no personal liability under the deed of trust because it was a purchase money trust deed. The contributions toward the improvements by Mr. and Mrs. Brown were disputed at trial, as well as the nature of the resultant property, whether separate or community. Numerous declarations were filed. Decedent received all the rental income from the property. She willed the property to appellant Giolitto after encumbering it with a purchase money trust deed.

Giolitto contends that California law requires exoneration in this case.

Brown contends that the trial court abused its discretion in its finding of separate property and that the trial court was prejudiced against him by reading and filing inflammatory matters about him contained in letters written to it by relatives of decedent.

I.

Is a specific devisee under a will which simply gives “my home and real property” entitled to exoneration from the

residuum?

The nub of Giolitto’s argument is that, even though decedent had no personal liability under the deed of trust (Code Civ. Proc., § 580b), the debt secured by the property possibly

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