Schuster v. Remelin

ASHBURN, J. Appellants Joan Schuster and Larry Bate-man Henton are niece and nephew of decedent Albert J. Bateman. By petition to determine heirship a ruling was sought to the effect that they as sole heirs of decedent were entitled to distribution as intestate property of that part of the estate referred to in decedent’s will as “property held of record in joint tenancy” with his wife. Mrs. Bateman died on October 12, 1960, and the husband, Albert J. Bateman, on October 25, 1960, 13 days later. Although title to joint property had vested in him by survivorship Mr. Bateman prior to his death had not had the record changed to show the fact of his sole ownership and from this circumstance arises appellants’ claim. From an adverse decision declaring respondent Griffith Hall Remelin (son of Mrs. Bateman by a former marriage) entitled to succeed to all property of decedent this appeal is taken.

The pertinent portions of the will read as follows: “Second: My only legal heir is my wife, Margaret H. Bate-man. I have no children, no deceased children or issue of any deceased children. Third: All the property which stands in the name of myself and my wife, other than property held of record in joint tenancy, if any, is our community property. It is my intention to dispose of all of my property, except any held of record in joint tenancy, and to exercise any testamentary power of appointment I may own at my death. Fourth : I hereby give, devise and bequeath all of my estate, real, personal and mixed and wheresoever situated unto my wife, Margaret H. Bateman. Fifth : In the event my wife predeceases me or does not survive an order of distribution of my estate, then I hereby give, devise and bequeath my estate, real, personal and mixed and wheresoever situated unto Griffith Hall Remelin, the son of my wife, by a former marriage, an adult, presently residing in Garden Grove, California, upon the principle of representation. Sixth : Except as otherwise provided for in this Will, I have intentionally and with full knowledge, omitted to provide for my heirs. If any devisee, legatee or beneficiary under this Will shall contest it or any of its parts or provisions, any share or interest given to that person shall be revoked and augment proportionately the shares of such of the beneficiaries hereunder as shall not have joined or participated in said contest.”

It is appellants' contention that the third paragraph of the will expresses an intention that property “held of record in joint tenancy” is to pass by intestacy, in light of the expressed [795]intention “to dispose of all of my property, except any held of record in joint tenancy.” Respondent contends that since the decedent’s wife predeceased him, he, in fact, did not own any joint tenancy property in that the joint tenancy was terminated on his wife’s death. It is further contended that the questioned clause was put in the will solely for the purpose of avoiding confusion with respect to joint tenancy property in the event that he predeceased his wife.