Bank of America v. Bunnell

SHINN, P. J. This is an appeal by Marguerite Bunn Bunnell, administratrix of the estate of Harry C. Bunn, deceased, from that portion of an order which distributed to Bank of America National Trust and Savings Association, as testamentary trustee, the sum of $20,000 for the uses and purposes set forth in the decedent’s last will.

Sally H. Bunn died February 3, 1947, leaving surviving her husband, nephews and nieces, but no lineal descendent, mother or father, sister or brother. The surviving husband died March 12, 1947, and letters of administration upon his estate were issued to appellant. By her will, and codicils executed more than six months prior to her death, Mrs. Bunn disposed of her estate which would remain after her husband’s death, leaving the same to her executors to be “sold and given to a worthy charity,” to be selected by her executors. Appellant filed a petition under section 1080 of the Probate Code for a determination as to who were entitled to distribution of the estate. The surviving husband did not challenge [229]the effectiveness of the bequest to charity under sections 41 and 43 of the Probate Code. The pertinent provision of section 41 is that a testator may not leave more than one-third of his estate to charity as against his spouse, brother, sister, nephew, niece, descendent or ancestor who would otherwise have taken the excess over one-third. Section 43 reads: “Nothing in this article contained shall apply to bequests or devises made by will executed at least six months prior to the death of a testator who leaves no spouse, child, grandchild or parent, or when all of such heirs, by a writing executed at least six months prior to his death, shall have waived the restriction.”

In the former proceeding the trial court held that no valid trust was created and no valid gift to charity was effected by the will. This judgment was reversed by the Supreme Court (Estate of Bunn, 33 Cal.2d 897 [206 P.2d 635]). Since then there has been a partial distribution of the estate in which $20,000 was distributed to the bank as trustee, the estate not being ready for final distribution.

Upon the former appeal the following points were decided: (1) The bank, as trustee, was a proper party to appeal from the order in the proceeding to determine heirship; (2) a valid charitable trust was created by the will of Mrs. Bunn with the bank as trustee; (3) since the will was executed at least six months prior to Mrs. Bunn’s death the limiting provisions of section 41 of the Probate Code, which restrict charitable bequests to one-third of the estate, may be taken advantage of only by those named in section 43, namely, a surviving spouse, child, grandchild or parent; (4) inasmuch as the surviving spouse did not question the validity or effectiveness of the bequest the same could not be questioned by the administratrix of his estate, or by the collateral heirs who were attempting to do so.